Petition for Writ of Certiorari — Peterson v. Stafford

IN THE

Supreme Court of the Anited States

October Term, 1992

ROGER A. PETERSON,

Petitioner,

V.

R.H. STAFFORD,

the Washington County Auditor,

Respondent,

and

JOAN ANDERSON GROWE,

the Secretary of State,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Roger A. Peterson

Counsel of Record

PETERSON, ENGBERG & PETERSON

Therese M. Dosch

700 Title insurance Building

Minneapolis, Minnesota 55401

(612) 338-6743

1993 — Northwest Printing Co., 3010 Znd St. No., Minneapolis, MN 55411 — 588-7506

QUESTION PRESENTED

Whether a Minnesota statute which provides ballot advan

tages to incumbent judicial candidates, as illustrated below, vio-

lates the Equal Protection Clause of the Fourteenth Amendment

of the United States Constitution, notwithstanding that the Min

nesota Constitution requires fair elections for judicial positions

JUDICIAL OFFICES

ASSOCIATE JUSTICE

SUPREME COURT

(GARDEBRING SEAT)

(Vote For One)

SANDRA GARDEBRING INcUMBEN1

ROGER A. PETERSON

—— ee ee oe

$$

TABLE OF CONTENTS

Question Presented .......

Table of Contents

Table of Authorities ......

(menos TRCN... wo ee ek enue

Jurisdiction ........

Relevant Constitutional and

Statutory Provisions

Statement of the Case .........

Statement of Facts ........

Reasons for Granting the Writ

1. The decision of the Minnesota Supreme Court upheld

a State statute that impairs the fundamental right to

vote and the equal protection clause of the fourteenth

amendment of the United States Constitution ...... 13

A. The Right To Vote Is A Fundamental Right

Protected From Unconstitutional State

Infringement By The Equal Protection Clause Of

The Fourteenth Amendment ............... 13

B. The Right To Vote And The Right To Be A

Candidate Are Inexorably Connected ......... 14

C. The Minnesota Supreme Court Erred When it

Applied The Rational Basis Test In Its Analysis

Of The Incumbency Designations ........... 16

Il. The decision of the Minnesota Supreme Court upheld

a State statute that enables the state to provide

advantages to incumbent candidates over all other

candidates in violation of the Minnesota Constitution

and in violation of the equal protection clause of the

Fourteenth Amendment of the United States

frre

A

States Are Empowered To Regulate Elections,

However States May Not Impinge Upon

Constitutional Rights 2... ...

When A State Constitution Provides That A

Position Is To Be Elective, That Provision Must

Be Given Effect By Ensuring Free and Equal

Elections ....... way of > ee

Minnesota Law Violates The Equal Protection

Clause Of The Fourteenth Amendment By

Requiring That Judicial Incumbents’ Names

Always Appear At The Top Of The List Of

Candidates. The Court's Decision To Uphold This

Statute Is In Conflict With Numerous Other

Courts Decisions

Minnesota Law Providing Incumbency

Designation For Judicial Candidates Violates The

Equal Protection Clause Of The Fourteenth

Amendment

Conclusion

Appendices

111

20)

>

TABLE OF AUTHORITIES

Cases: Page

American Party of Texas v. White, 94 S.Ct. 1296 (1974) 23

Anderson v. Celebrezze, 460 U.S. 780. 103 S.Ct. 1564

Ree 5b) Coren ore ee 19-21, 23, 33

Anderson vy. Martin, 84 S.Ct. 454 (1964) .. eee <a

Bachrach v. Secretary of ( commonwealth, 382 Mass. 268, 415

N.E.2d 832 (1981) .... ee 22

Badger v. Hoidale, 88 F2d 208 (8th Cir. 1937) 26

Binkowski v. Miller, 411 U.S. 901 (1973) . 33

Bullock v. Carter, 92 S.Ct. 849 (1972) ..... . 18, 20, 23, 25

Cromer v. State of South Carolina, 917 F2d 819 (4th Cir. 1990). 18

Culliton v. Bd. of Election Comm'rs, 419 FE Supp. 126 ee

Dart v. Brown, 717 F2d 1491 (Sth Cir. 1983) A Rs

Dunn v. Blumstein, 92 S.Ct. 995 (1972) 2

Elliot v. Secretary of State, 295 Mich. 245, 294 N.W. 171 (1940) 30

Gould v. Grubb, 536 P.2d 1337 (Calif. 1975) x. gs Oe ety ay eo ON

Gray v. Sanders, 83 S.Ct. 801 (1963) Be she ryt 24

Harper v. Virginia State Board of Election, 86 S.Ct. 1079

Lee 16, 23

ty. Sr ‘ee 29, 30

Illinois State Bd. of Election v. Socialist Workers, 99 S.Ct. 983

(iJ. eee Rs ee e 23, 29

In re Scarrella, 221 N.W.2d 562 (Minn. 1974) 8

Kautenberger v. Jackson, 333 P.2d 293 (Ariz. 1958) 28

Kusper v. Pontikes, 94 §.Ct. 303 (1973) . ee 17, 24

Lubin v. Panish, 94 §.Ct. 1315 (1974) ae 16, 18, 23

Mann y. Powell, 333 ESupp. 1261 (N.D. IIL. 1969) 29

Marquette National Bank of Minneapolis v. First of Omaha

Service Corp., 99 S.Ct. 540 (1978). ro 2

McLain vy. Meier, 637 F2d 1159

it | Te ae ee 14; 244 ocs-t5 2

Netsch v. Lewis, 344 ESupp. 1280 (N.D. Ill. 1972 29

Page v. Carlson, 488 N.W.2d 274 (Minn. 1992) 10

Rees v. Layton, 6 C.A.3d 81S, 86 Cal Rptr 268

(Cal. Ct. App. 1970) , , 54

Reynolds v. Sims, 84 S.Ct. 1362 (1964) 16

Riddell v. National Democratic Party, 5O& F.2d 770

(Sth Cir. 1975) 17

Roger A. Peterson v. RH. Stafford. Washington County Auditor

and Joan Anderson Growe, Secretar) of State, 490 N.W.2d 418

(Minn. 1992) Z, 10, 12, 20, 33

Rosario v. Rockefeller, 93 §.Ct. 1245 (1973) 2

Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992) 18, 22

Sangmeister v. Woodard, 565 F.2d 460 (7th Cir. 1977) 28, 29

Snowden v. Hughes, 321 U.S. 1 (1944) 25

Storer v. Brown, 94 S.Ct. 1274 (1974) bgt a

Weisberg v. Powell, 417 E2d 388 (7th Cir. 1969) 25, 29

Williams v. Rhodes, 89 §.Ct. 5 (1968) 18, 23, 24

Yick Wo v. Hopkins, 6 S.Ct. 1064 (1886) 16, 25

Statutues:

28 U.S.C. §1257 3

28US.C. §2101(c) 2

Minn. Stat. §$204B.06, subd. 6 (1992) &

Minn. Stat. §$204B.35, subd. 2 (1992) 4

Minn. Stat. §204B.36, subd. 4 passim

Minn. Stat. §204B.36, subd. 5 passim

Minn. Stat. $204B.44 (1992) 5

Minn. Stat. $204B.44 (1992) 2

Minn. Stat. $204D.08, subd. 3 (1992) 29

Minn. Stat. $490,124, subd. 2 (1990) Y

Minn. Stat. $645.17(1)(1947) 27

Minnesota Constitution, art. VI. $5 §

United States Constitution, Fourteenth Amendment passim

Miscellaneous:

Black's Law Dictionary , 608 (4th ed. 1968) 24

Gwenyth Jones, By the People? Judicial Selection in Minn sold,

(he Bench and Bar of Minnesota, Feb. 1993. at 17 |?

H. Bain & D. Hecock, Ballot Position and the Voter's Choice

(1957) : . 29

Kelman, Ballot Designations: A Second Look. 35 Wayne L

Rev. 63 (1988) 29

scott, California Ballot Position Statutes: An Une onstitutional

Advantage to Incumbents, 45 So. Cal. L. Rev. 365 1 1972) . 25,29

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

ROGER A. PETERSON,

PETITIONER,

V

R.H. STAFFORD, THE WASHINGTON

COUNTY AUDITOR,

RESPONDENT

and

JOAN ANDERSON GROWE. THE SECRETARY

OF STATE.

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

lO THE MINNESOTA SUPREME COURT

The Petitioner, Roger A. Peterson, respectfully requests this

Court to issue a Writ of Certiorari to review the judgment of the

Supreme Court of the State of Minnesota entered in this action

on December |. 1992

OPINIONS BELOW

Phe decision of the Supreme Court of the State of Minnesota

holding that Minn. Stat. §204B.36, subd. 4, which prescribes

that on the official ballot the judicial seats to be voted upon be

designated as the “(last name of the incumbent) seat” and Minn

Stat. §204B.36, subd. 5, which mandates an incumbency des

ignation on the ballot do not violate the Equal Protection Clause

of the Fourteenth Amendment of the United States Constitution

ee

is reported as Roger A. Peterson v. R.H. Stafford, Washington

County Auditor and Joan Anderson Growe, Secretary of State,

490 N.W.2d 418 (Minn. 1992). This decision ts reprinted in Pet.

App. p. 18A. ,

JURISDICTION

[In the initial proceeding in this matter, Petitioner filed his

petition directly with the Minnesota Supreme Court (Pet. App.

p. 18A). The Minnesota Supreme Court has original jurisdiction

in any case where an individual charges an error by the Secre-

tary of State in the preparation of official election ballots. Minn.

Stat. §204B .44 (1992). The oral judgment of the Supreme Court

of Minnesota denying Mr. Peterson's petition was issued on Sep-

tember 23, 1992, the same day that the Court heard the oral

arguments in the matter. A written opinion was issued October

9, 1992, and judgment was entered December |, 1992.

Although the November, 1992 election has been held, the issues

presented herein are not moot, because they are “capable of rep-

etition, yet evading review.” Storer v. Brown, 94 S.Ct. 1274,

1282 n.8 (1974) citing Rosario v. Rockefeller, 93 S.Ct. 1245,

1249 n.5 (1973); Dunn v. Blumstein, 92 S.Ct. 995, 998 n.2

(1972). As in Storer, although the election ts long over “and no

effective relief can be provided to the candidates or voters,

this case is not moot, since the issues properly presented, and

their effects on independent candidacies will persist as the ...

statutes are applied in future elections.” /d. at 1282 n.8. Addi-

tionally, Roger Peterson intends to run again for election to the

Minnesota Supreme Court in the future, and therefore, will be

28 U.S.C. §2101(c) provides that “any writ of certiorari intended to bring any judg

ment or decree in a civil action, suit or proceeding before the Supreme Court tor

review shall be taken or applied for within ninety days after entry of such judgment

or decree.” Under Minn. Civ. App. R. Rule 136.02 entry of judgment does not

occur until at least 30 days after judgment ts issued. See a/so Marquette National

Bank of Minneapolis v. First of Omaha Service Corp., 99 §.Ct. 540, 545 n. 18

(1978)

cee ment ee 8

a

once again subject to the same statutorily created disadvantage

imposed on non-incumbent candidates.

The United States Supreme Court has jurisdiction to review

the fina! judgment rendered by the Minnesota Supreme Court

“where the validity of a state statute is drawn in question on the

ground of its being repugnant to the Constitution.” 28 U.S.C.

81257

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

United States Constitution. Fourteenth Amendment

Section |. 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: not

shall any State deprive any person of life, liberty, or prop-

erty, without due process of law: nor deny to any person

within its jurisdiction the equal protection of the laws

Minnesota Constitution, Article VI. $7

Term of office; election. The term of office of all judges

shall be six years and until their successors are qualified

They shall be elected by the voters from the area which they

are to serve in the manner provided by law.

Minnesota Statute $204B.35. subd. 2 (1992)

Manner of preparation. Ballots shall be prepared in a man-

ner that enables the voters to understand which questions are

to be voted upon and the identity and number of candidates

to be voted for in each office and to designate their choices

easily and accurately. The name of a candidate shall not

appear ona ballot in any way that gives the candidate an

advantage over an opponent, including words descriptive of

the candidate's occupation, qualifications, principles, or

opinions, except as otherwise provided by law (emphasis

added)

4

Minnesota Statute $204B.36, subd. 4 (1992).

Judicial candidates. The official ballot shall contain the

names of all candidates for each judicial office and shall

state the number of those candidates for whom a voter may

vote. The title of each judicial office shall be printed on the

official primary and general election ballot as follows:

(a) In the case of the supreme court:

“Chief justice (or associate justice)— supreme court

(last name of incumbent) seat”:

(b) In the case of the court of appeals:

“Judge —court of appeals (last name of incumbent)

seat’;

(c) In the case of the district court:

“Judge —(number) district court (last name of incum-

bent) seat”; or

(d) In the case of the county court:

“Judge —(number) county court (last name of incum-

bent) seat.”

Minnesota Statute §204B .36,. subd. 5 (1992).

Designation of incumbent; judicial offices. If a chief jus-

tice, associate justice, or judge is a candidate to succeed

again, the word “incumbent” shall be printed after that

judge's name as a candidate.

Minnesota Statute $204B.44 (1992).

Any individual may file a petition in the manner provided in

this section for the correction of any of the following errors,

omissions or wrongful acts which have occurred or are

about to occur:

ak * *

(d) Any wrongful act, omission, or error of any election

judge, municipal clerk, county auditor, canvassing board or

any of its members, the secretary of state, or any other indi-

vidual charged with any duty concerning an election.

m

The petition shall describe the error, omission or wrongful

act and the correction sought by the petitioner. The petition

Shall be filed with any judge of the supreme court in the case

of an election for state or federal office... The petitioner

shall serve a copy of the petition on the officer, board or

individual charged with the error, omission or wrongful act,

and on any other party as required by the court. Upon

receipt of the petition the court shal! immediately seta time

for a hearing on the matter and order the officer, board or

individual charged with the errer, omission or wrongful act

to correct the error or wrongful act or perform the duty or

show cause for not doing so. The court shall issue its find-

ings and a tinal order for appropriate relief as soon as pos-

sible after the hearing. Failure to obey the order is contempt

of court.

STATEMENT OF THE CASE

The Petitioner below, Mr. Peterson, filed his Petition on Sep-

tember 1, 1992. citing as error the statutory requirement that

there appear on the official ballots for judicial elections the des-

ignation of “incumbent” after the name of a judicial candidate

to succeed again and that the judicial seat to be voted upon be

labelled as “Chiet justice (or associate justice) — supreme court

(last name of incumbent) seat”, i.e. as in this race, “Associate

Justice - Supreme Court (Gardebring Seat).”

The citizens of each state freely chose the method whereby

their judges and justices would be selected and that particular

method was incorporated into the various state constitutions. In

States such as Minnesota, where the citizens ratified a constitu-

tion that requires the election of judges and justices, the State is

constitutionally bound to conduct all elections in a free and

impartial manner. Minnesota's statutorily mandated designa-

tions clearly grant an advantage to incumbent judicial candi-

dates over their challengers. This statute denies equal protection

of the law to ail the non-incumbent candidates for judicial office

and to all the citizens who cast votes for the non-incumbent can-

didates. It, therefore, violates the Equal Protection Clause of the

Fourteenth Amendment of the United States Constitution.

6

The parties submitted written briefs on the state and federal

constitutional issues involved and the Minnesota Supreme

Court heard oral arguments on September 23, 1992. The Court

issued an oral opinion denying Mr. Peterson's Petition on Sep-

tember 23, 1992, and a written opinion on October 9, 1992. The

judgment of the court was entered December |, 1992.

STATEMENT OF FACTS

Roger A. Peterson is a citizen of the State of Minnesota and

has been licensed as an attorney in Minnesota since 1959. He is

a resident and registered voter of Washington County,

Minnesota.

At the time he filed for the position of associate justice of the

Minnesota Supreme Court he met all of the requirements estab-

lished for candidates to judicial office in Minnesota. “Judges of

the supreme court and the district court shall be learned in the

law.” Minnesota Constitution, art. VI, $5. “Learned in the

law” has been defined to mean that a candidate for the supreme

court or district court be admitted or entitled to be admitted to

practice as an attorney at law in this state. /n re Scarrella, 221

N.W.2d 562. 563 (Minn. 1974). Mr. Peterson timely filed for

the position of associate justice of the Minnesota Supreme

Court on July 21, 1992. When he filed, he and all other candi-

dates were required to file for a specific seat occupied by a spe-

cific justice pursuant to Minn. Stat. $204B.06, subd. 6 (1992).

Mr. Peterson filed for the seat held by Justice Sandra Gardebr-

ing. No candidates other than Mr. Peterson and Justice Gar-

debring tiled for that position, but other candidates filed to run

against other specific justices.

On August 28, 1992, Mr. Peterson obtained his absentee bal-

lot for the primary election from the Washington County Audi-

tor’s Office. There was no primary election for the seat which

Mr. Peterson had filed for because only two candidates had filed

for the particular position. The ballot listed two judicial seats on

the State Supreme Court to be voted upon in the primary elec-

tion. They appeared as follows:

:

JUDICIAL OFFICES

CHIEF JUSTICE

SUPREME COURT

(KEITH SEAT)

(VOTE FOR ONE)

ROSS A. PHELPS

MICHAEL C. DEMOSS

A.M.(SANDY) KEITH | incumBent

ASSOCIATE JUSTICE

SUPREME COURT

(YETKA SEAT)

(VOTE FOR ONE)

ALAN C. PAGE

EDWARD W. BEARSE

KEVIN JOHNSON

(App. p. 23A). The wording of the ballot conforms with the lan-

guage prescribed by Minn. Stat. §204B.36, subds. 4 and §

(1992).

In regards to the associate justice seat above designated

(Yetka Seat) no incumbent was designated because Judge Yet-

ka’s attempt, pursuant to Minn. Stat. §490.124, subd. 2 (1990),

to have his term extended to avoid the election was declared in

violation of the Minnesota Constitution in a proceeding initiated

by candidate, now justice, Alan C. Page, who argued to a spe-

cially appointed seven member court of all retired judges. The

Court determined that it was necessary to “appoint and impanel

neutral and disinterested members of the judiciary to serve as

the Supreme Court by designation.” Order of the Minnesota

Supreme Court issued July 22, 1992, in Page v. Carlson, 488

N.W.2d 274 (Minn. 1992).

S

The statutory provisions apply to the general election ballots

as Well as primary election ballots. Mr. Peterson believed, there

fore, that designations similar to those that appeared on the pri

mary ballot would appear on the general election ballot when he

would be a candidate for an associate justice position. He, there

fore, filed a petition with the Minnesota Supreme Court request

ing the Court, or a specially appointed court, review these

provisions and rule upon their constitutionality.

Unlike the Page proceeding argued one month earlier, four

members of the Minnesota Supreme Court and one retired

judge, appointed by the four sitting justices, heard oral argu

ments on the Petition on September 23, 1992. Justice Yetka and

the colleagues and peers of the three incumbent justices who

were required to run for election sat in judgment on the Issues

presented herein. The court, in its opinion, explained the com

position of the court

{T]he members of this court who have not exercised their

right to recusal have concluded that it is not only appropri!

ate, but necessary in fulfillment of our judicial responsibil

ity to hear and decide this controversy. The circumstances

relating to the term of office of each participating justice and

the operation of Minn. Stat. §8490.121, subd. 12 and

490.125 (1990), the mandatory judicial retirement law,

make certain the fact that not one member participating in

this proceeding will ever stand again for judicial election in

the State of Minnesota and that, accordingly, there can be

neither the potential for nor the perception of a conflict of

interest.

Peterson v. Stafford, 490 N.W.2d at 418 n. | (App. p. 3A)

The Court issued an oral opinion denying the Petition on Sep-

tember 23, 1992. The Minnesota Supreme Court's written opin-

lon, issued October 9, 1992, includes a discussion of the

historical development of Minnesota's judicial selection

process. /d. at 420-423. The Court observed that the framers of

Y

the constitution decided on the election process for the selection

of all judges and justices. We observe that while the framers ot

the Minnesota Constitution were fully aware of the judicial

selection alternatives including the appointment for life process

followed in the federal justice system, they chose to adopt an

election process to select judges and justices

In years subsequent to the adoption of the judicial ejection

procedure several committees suggested the amendment of

Minnesota's judicial selection process. The first time sugges

tions were made to change the selection process occurred in

1948 when a special constitutional convention recommended

extensive revisions to the judicial article of the state constitution

to alter the fundamental election process. /d. at 420. In 1972, a

constitutional study commission subcommittee recommended

that the basic structure of the judiciary be changed and that a

“Missouri plan”-type selection process be adopted by amend

ing the Minnesota Constitution.? /d. at 422-423. On both occa-

sions, twenty-four years apart, the legislature rejected the

recommendations and the proposed amendments were never

submitted to the voters of the state. Gwenyth Jones, By the Peo-

ple? Judicial Selection in Minnesota, The Bench and Bar of

Minnesota, Feb. 1993, at 17. Consequently, all judges in the

state are stll elected pursuant to the provisions of the Minnesota

Constitution. Peterson v. Stafford, 490 N.W.2d at 423. The

court concluded from the historical development of Minnesota's

judicial selection process that although no substantial amend

ments were made to the election process by the voters, changes

were made by statute. /d. at 423-425

The Missourt plan has been simply defined as follows: Under this plan, when a

vacancy in a judicial office occurs. a non partisan judicial Commission submits the

names to the governor who appoints one of them to fill the vacancy. After holding

office tor a limited period, the name of the appointee is submitted to the electorate

without a competing candidate on the question: “Shall Judge be

retained in office?” Ifa majority of the votes cast on the question are in the affirm

ative, the appointee remains in office for a new and full term. If the vote is in the

nevative, the process 1s repeated ~~ Peterson v. Stafford, 490 N.W.2d at 422 n17

itation omitted)

10

The court asserts that these suggestions by legislative com-

mittees demonstrate their recognition of the tensions inherent in

the judicial selection process prescribed by the state constitu-

tion. /d. at 422. The suggested constitutional amendments were

never submitted to the voters by the state, rather the legislature

“has provided its own variation of the election process.” /d. at

423. This legislative variation involves permitting a judicial

appointee at least one year in office before they are required to

stand for election to that position. The additional time period

was “to allow the public to reflect favorably or unfavorably on a

judge's competence in office.” /d. at 423. Additionally, when the

incumbent judge's position is finally placed on the ballot to be

voted upon, he is designated as an incumbent. /d. at 423. (This

incumbency designation provision appears to assume that

although the public has had at least a year to evaluate the per-

formance of a judge, they still need assistance in identifying the

judge they were to be evaluating. )

The court applied the rational basis test analysis to the ballot

designation provisions. /d. at 423. The court, recognized that

such designations “may provide the incumbent with an advan-

tage over other candidates” , but stressed tat their purpose was

“informational”. /d. at 423.

The court, in iis only reference to the designation of the seat

to be voted upon as the incumbent's seat, stated that “[a] logical

extension and application of the ‘separate seat’ concept of a judi-

cial office is that the legislature is authorized to select a manner

of identification of that seat which promotes and clarifies the

distinction between the separate offices.” /d. at 424. The court

permits this designation as constitutionally acceptable despite

the fact that each position to be voted upon is already separately

listed as “Associate Justice” or “Chief Justice” and that only the

candidates who filed for that particular position are listed under

the position heading. Mr. Peterson asserts that these two ballot

format provisions are all that is necessary to allow the voter to

determine for what position she is voting.

he court, in upholding the designation stated:

Whatever advantage there may be to the incumbent from the

incumbency designation on the ballot, it is clear that the

overriding purpose of the ballot designation has been to

assure an able, independent and stable judiciary while at the

same time requiring incumbent judges to submit to voter

appraisal in an open election.

Id. at 424.

The court concluded that:

Minnesota has adopted its own middle-of-the-road

approach to judicial selection. The open election process has

been retained, but with a guasi-retention feature which sim-

ply informs the voter, without comment, who is the incum-

bent candidate whose performance is under review and who

is the non-incumbent challenger (emphasis added).

Id. at 425. The so-called “quasi-retention feature” is embodied

in the legislation which provides a two-step process of designa-

tions on the election ballots: First, Minn. Stat. §$204B.36, subd.

4, adopted in 1973, provides that the title of the judicial office

to be voted upon be listed as the incumbent's seat (i.e. “Gar-

debring Seat”); Second, Minn. Stat. §204B.36, subd. 5, passed

in 1949, requires that the candidate to succeed again be labelled

the “incumbent”. Mr. Peterson, in his position as both a regis-

tered voter and a qualified candidate for judicial office, chal-

lenged these designations as violative of the Minnesota

Constitution and of the Equal Protection Clause of the Four-

teenth Amendment of the United States Constitution.

The Minnesota Supreme Court denied Mr. Peterson's

Petition.

eerie,

This appeal followed.

REASONS FOR GRANTING THE WRIT

1. The decision of the Minnesota Supreme Court is in error

because it permits the State to interfere with the electorates’ fun-

damental constitutional right to vote and the corresponding

rights to cast their votes unimpeded by state influence for the

candidate of their choice. This practice violates the Equal Pro-

tection Clause of the Fourteenth Amendment.

2. The decision of the Minnesota Supreme Court is in error

because it permits the State to continue to use a ballot format

that enables the State to provide advantages to incumbent judges

challenged by non-incumbent candidates. This ballot format

violates the Equal Protection Clause of the Fourteenth

Amendment.

3. There exists a conflict between various state and federal

courts regarding the constitutionality of incumbency designa-

tions on election ballots. The Minnesota Supreme Court's decti-

sion to uphold a statute that is, in effect, an “incumbent first”

statute is in conflict with numerous other state and federal court

decisions.

The decision of the Minnesota Supreme Court permits the

continued violation of the fundamental right of all voting Min-

nesotans to cast their votes without state influence and also per-

mits the continued denial of equal protection to all non-

incumbent judicial candidates in the State of Minnesota. The

Court should grant this Petition to end the violation of the Equal

Protection Clause of the Fourteenth Amendment and to resolve

the conflict among the circuits by declaring such “voting cues”

to violate the Equal Protection Clause of the Fourteenth Amend-

ment of the United States Constitution.

ae

THE DECISION OF THE MINNESOTA SUPREME COURT

UPHELD A STATE STATUTE THAT IMPAIRS THE

FUNDAMENTAL RIGHT TO VOTE AND VIOLATES THE

EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CONSTITUTION.

A. The Right To Vote Is A Fundamental Right Protected

From Unconstitutional State Infringement By The Equal

Protection Clause Of The Fourteenth Amendment.

Undoubtedly, the right of suffrage is a fundamental matter

in a free and democratic society. Especially since the right to

exercise the franchise in a free and unimpaired manner is

preservative of other basic civil and political rights, any

alleged infringement of the right of citizens to vote must be

carefully and meticulously scrutinized. (Emphasis added. )

Harper v. Virginia State Board of Election, 86 S.Ct. 1079, 1982

(1966) quoting Reynolds v. Sims, 84 §.Ct. 1362, 1381 (1964):

see also Lubin v. Panish, 94 §.Ct. 1315, 1322 (1974): Yick Wo

v. Hopkins, 6 S.Ct. 1064, 1071 (1886). “{T]}he right to vote in

federal elections is conferred by Art. I, §2 of the Constitu-

tion, ... the right to vote in state elections is nowhere expressly

mentioned. It is argued that the right to vote in state elections is

implicit, particularly by reason of the First Amendment... . ”

fd. at 1080 (citation omitted). “While it is true that the admin-

istration of the electoral process is a matter that the Constitution

largely entrusts to the states, Art. 1, §2, Art. II, $1, in exercising

their powers of supervision over elections ‘the state may not

infringe upon basic constitutional protections’, and ‘unduly

restrictive state election laws may so impinge upon freedom of

association as to run afoul of the First and Fourteenth Amend-

ments.” Riddeil v. National Democratic Party, 508 E2d 770.

776-777 (Sth Cir. 1975) quoting Kusper y. Pontikes, 94 S.Ct.

303, 307 (1973). Clearly, the state’s power to legislate and reg-

I4

ulate election practices for state as well as federal offices must

be exercised within the boundaries of the federal constitution.

The Minnesota state legislature has considerable discretion in

organizing and supervising state elections. However, the state

must ensure that it exercises its power consistent with the Equal

Protection Clause of the Fourteenth Amendment. In the current

matter, the Minnesota Supreme Court has upheld a statute that

permits the State to influence the outcome of judicial elections

by providing “voting cues’ which favor incumbent candidates.

Such “voting cues” influence the outcome of elections and pre-

vent all qualified voters from exercising their franchise in “a

free and unimpaired manner.”

B. The Right To Vote And The Right To Be A Candidate Are

Inexorably Connected.

The issues presented in this case are difficult to classify. The

State statute specifying ballot format does not involve absolute

exclusion of a particular candidate, however, the manipulation

of the information provided on the ballot has an effect on the

fundamental right to vote. McLain v. Meier, 637 F2d 1159.

1167 (8th Cir. 1980). The states’ legitimate interest in regulating

ballot format

must be achieved by a means that does not unfairly or unne-

cessarily burden either a minority partys or an individual

candidate’s equally important interest in the continued avail-

ability of political opportunity. The interests involved are

not merely those of parties or individual candidates; the vot-

ers can assert their preferences only through candidates or

parties or both and it is this broad interest that must be

weighed in the balance. The right ef a party or an individual

to. a place on a ballot ts entitled to protection and is inter-

twined with the rights of voters.

Lubin v. Panish, 94 S.Ct. at 1320 (1974) (emphasis added).

The rights of voters and the rights of candidates are not easily

separated. Bullock v. Carter, 92 S.Ct. 849, 856 (1972). “[A|ny

restrictions on ballot access by candidates necessarily burdens

$e

15

the rights of their supporters to some extent.” Rosen v. Brown,

970 F2d 169, 175-176 (6th Cir. 1992), citing Cromer v. State of

South Carolina, 917 E2d 819, 822 (4th Cir. 1990).

The intertwined rights of voters and candidates are related to

the right of the voters to be allowed the opportunity to “cast

their votes effectively.” Williams v. Rhodes, 89 S.Ct. 5, 10

(1968). The First Amendment protects the right to cast a mean-

ingful vote for a candidate of one’s choice. Rosen v. Brown, 970

F 2d at 176, citing Dart v. Brown, 717 F2d 1491, 1504 (Sth Cir.

1983) cert. denied, 469 U.S. 825 (1984). This right, however, is

infringed upon when the state provides “voting cues” on ballots

favoring one candidate over others and making it virtually

impossible for a non-favored candidate to prevail in an election.

Rosen v. Brown, 970 F.2d at 176.

The facts in Rosen v. Brown bear a striking resemblance to the

facts in the current matter. Rosen was an independent candidate

for a seat in the Ohio House of Representatives. He secured a

place on the ballot, but the State refused to designate him as an

Independent on the ballot, despite the fact that candidates nom-

inated by a political party were designated as that party’s can-

didate. /d. at 174. The court found that the State provided a

“voting cue” to those who wanted to vote for a Democratic or

Republican candidate thus providing an advantage to party can-

didates. /d. at'176.

In ascertaining whether the election laws violated the federal

constitution the court applied the test set forth in Anderson vy.

Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570 (1983).

The court determined that the state election code burdened the

First Amendment rights of voters to cast their votes effectively

and that the statute violated the Equal Protection Clause of the

Fourteenth Amendment “because it places unequal burdens on

Independent and third party candidates and is designed to give

Democrats and Republicans a decided advantage at the polls in

a general election.” /d. at 177-178.

te

Similarly, Minnesota's legislature has provided three voting

cues in judicial elections; the designation of the position to be

voted upon as the incumbent's seat by using the incumbent's sur-

name (i.e., Gardebring Seat) and always placing that seat iden-

tification on top of the list of candidates, and third, the printing

of the incumbency designation beside the name of the candidate

to succeed again. These voting cues provide advantages to

incumbents that are virtually impossible for the challenging

non-incumbent candidate to overcome. The statute must, there-

fore, be found to violate the Fourteenth Amendment.

C. The Minnesota Supreme Court Erred When It Applied

The Rational Basis Test In Its Analysis Of The Incumbency

Designations.

In its analysis of the judicial election provisions, the Minne-

sota Supreme Court used a standard of review that is “some-

thing akin to the rational basis test.” Peterson v. Stafford, 490

N.W.2d at 423. The court erred.

An equal protection challenge to a statute charged with

directly affecting the electoral process, the fundamental nature

of the right to vote, and the importance of preserving the integ-

rity of the franchise necessarily raises the level of judicial scru-

tiny. Gould v. Grubb, 536 P.2d 1337, 1342 (Calif. 1975). Where

a “classification scheme imposes a very ‘real and appreciable

Impact’ on the equality, fairness and integrity of the electoral

process, that scheme 1s subject to strict judicial scrutiny.” Id. at

1342-1344, citing Bullock v. Carter, 405 U.S. at 143. Under this

standard, the statute can be upheid only if the state can “dem-

onstrate that the classifications drawn are necessary to achieve a

compelling government interest.” /d. at 1344.

In the alternative, the court could have applied the test set

forth by this Court in Anderson v. Celebrezze, 103. S.Ct. at 1570

It is an analytical process for making such “hard judgments” in

the context of a challenge to a provision of a state’s election laws.

|

j

j

|A court] must first consider the character and magnitude of

the asserted injury to the rights protected by the First and

Fourteenth Amendments that the plaintiff seeks to vindi-

cate. It then must identify and evaluate the precise interests

put forward by the State as justifications for the burden

imposed by its rule. In passing judgment, the Court must not

only determine the legitimacy and strength of each of those

interests, it also must consider the extent to which those

interests make it necessary to burden the plaintiff's rights.

Only after weighing all these factors is the reviewing court

In a position to decide whether the challenged provision is

unconstitutional.

Id. at 1570.

Under either the strict scrutiny test or the Anderson balancing

test, the challenged judicial election statute fails to Pass consti-

tutional muster’. The statute burdens the First Amendment

rights of those voters who work to effectively vote for the non-

incumbent candidate. The statute also violates the Equal Protec-

tion Clause of the Fourteenth Amendment because it places an

unequal burden on non-incumbent candidates and is designed to

give incumbents an advantage. When these concerns are bal-

anced with the state’s justification that the statute provides infor-

mation to the voters, the provisions are clearly unconstitutional.

under any level of scrutiny, and must be declared invalid.

Sa

In McLain v. Meier, 637 F.2d at 1167, the court stated that it was unclear as to which

standard to apply. The court found, however, that an “incumbent first” Statute

(which is similar to Minnesota's designation of the seat as the “incumbent seat” )

fails to withstand even the minimal requirements of the rational basis test, because

the justification was unsound

THE DECISION OF THE MINNESOTA SUPREME COURT

UPHELD A STATE STATUTE THAT ENABLES THE STATE TO

PROVIDE ADVANTAGES TO INCUMBENT CANDIDATES

OVER ALL OTHER CANDIDATES IN VIOLATION OF THE

MINNESOTA CONSTITUTION AND IN VIOLATION OF

THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

A. States Are Empowered To Regulate Elections, However

States May Not Impinge Upon Constitutional Rights.

The source of the infringement of the electorates’ right to cast

their votes unimpeded is the ballot format for judicial offices

prescribed in Minn. Stat. $204B.36. This statute requires that

the judicial seat to be voted upon be labelled the incumbent's

seat and that the designation appear directly under the position

to be voted upon, and that a candidate to succeed herself be des-

ivnated as an “incumbent™. “An election bailot is a State-

devised form through which candidates and voters are required

to express themselves at the climactic moment of choice.” Rosen

v. Brown, 970 E2d at 175: see also Bachrach v. Secretary of

Commonwealth, 382 Mass. 268, 415 N.E.2d 832, 834 (1981)

cuing Anderson v. Martin, 84 S.Ct. 454, 455 (1964). Theretore,

when the state designs the format of the ballot it must ensure that

it does not violate any constitutional guaranties. /d. at 175, cit-

ine Bachrach v. Secretary of Commonwealth, 415 N.E.2d at

834-35. “The unequal effect flowing from [a] ballot design

gives rise to the equal protection question whether the inequal-

ity is such as offends the fourteenth amendment.” McLain v.

Meter, 637 % 2d at 1167.

This Court has addressed various equal protection challenges

to restrictions which states have attempted to impose on the tun-

damental right to vote and ballot access: Anderson vy. Cele-

brezze, 103 S.Ct. 1564 (1983) (holding early tiling date tor

independent presidential candidates to be an unconstitutional

f

19

burden on voting and associational rights of independent can-

didates’ supporters); [/linois State Bd. of Election v. Socialist

Workers, 99 §.Ct. 983 (1979) (declaring unconstitutional a state

requirement that independent candidates and new political par-

ties obtain signatures of large numbers of qualified voters in

order to appear on ballot); Lubin v. Panish.94 S.Ct. 1315(1974)

(held that California filing fee requirement unconstitutionally

denied indigent candidates access to the ballot ); Storer v. Brown,

94 S.Ct. 1274 (1974) (finding state statute forbidding ballot

position to independent candidates who have registered affilia-

tion with a qualified political party at anytime within one year

prior to primary election to be constitutional); American Party

of Texas v. White, 94 §.Ct. 1296 (1974) (declaring unconstitu-

tional the Texas state practice of printing on absentee ballots

only the names of the two major party candidates); Bullock v.

Carter, 92 S.Ct. 849 (1972) (Court declared primary election

filing tee to be unconstitutional): Williams Rhodes, 89 §.Ct. §

(1968) (holding that election law making it virtually impossible

lor new political party to be placed on the ballot results in a

denial of equal protection of the laws): Harper v. Virginia State

Bd. of Elections, 86 S.Ct. 1079 (1966) (holding that Virginia's

poll tax was unconstitutional and inconsistent with the Equal

Protection Clause); Anderson vy. Martin, 84 S.Ct. 454 (1964)

(Court held that compulsory designation of candidate's race on

the ballot violated the Fourteenth Amendment). It is clear from

analysis of the above cited cases that

administration of the electoral process Is a matter that the

Constitution largely entrusts to the States. But, in exercising

their power of supervision over elections and in setting qual-

ifications for voters, the States may not infringe upon basic

| constitutional protections.... As the Court made clear in

Williams v. Rhodes, supra, unduly restrictive state election

laws may so impinge upon freedom of association as to run

afoul of the First and Fourteenth Amendments.

Kusper v. Pontikes, 94 §.Ct. at 307-308 (1973) (citations

omitted).

a

20

B. When A State Constitution Provides That A Position Is To

Be Elective, That Provision Must Be Given Effect By Ensuring

Free And Equal Elections.

Minnesoia’s Constitution requires that judges and justices be

elected.

The term of office of all judges shall be six years and until

their successors are qualified. They shall be elected by the

voters from the area which they are to serve in the manner

provided by law.

Minn. Const., Art. VI, §7.

Art. VI, $7 clearly states that judges “shall be elected by the

voters .... °° Elections may be broadly defined as an expression

of a choice by the body of electors. Black’s Law Dictionary, 608

(4th ed. 1968). It is an underlying principle of constitutional law

that “every voter is equal to every other voter in his State, when

he casts his ballot in favor of one of several competing candi-

dates....” Gray v. Sanders, 83 S.Ct. 801, 808 (1963). “The

concept of “we the people’ under the Constitution visualizes no

preferred class of voters but equality among those who meet the

basic qualifications.” Id. In addition to the voter's right to a free

and equal election, all candidates to elected positions have a

“federally protected right to application and enforcement of the

state law without intentional or purposetul discrimination

among them.” Weisberg v. Powell, 417 E2d 388, 392 (7th Cir.

1969) citing Snowden v. Hughes, 321 U.S. 1 (1944): Yick Wo v.

Hopkins, 118 U.S. 356 (1886).

A ballot format, such as Minnesota's, “imposes a very ‘real

and appreciable impact’ on the equality, fairness and integrity of

the electoral process.” Gould v. Grubb, 536 P.2d at 1343, quot-

ing Bullock v. Carter, 405 U.S. at 143. The incumbency desig-

nations act as voting cues that provide advantages to one group

of candidates, the incumbents, and dilute the weight of the votes

of all the electors who cast their votes for non-incumbents. /d.;

21

see also McLain v. Meier, 637 F2d at | 166; Scott, California

Ballot Position Statutes: An Unconstitutional Advantage to

Incumbents, 45 So.Cal.L. Rev. 365, 383-386 (1972): footnote

6, infra.

The state legislature, by statutorily providing advantages to

judicial incumbents who are required to stand for election by the

state Constitution, has violated the basic federal constitutional

principle that the votes of all qualified electors be equal. The

state legislature has created provisions that deny the voters of

Minnesota their constitutionally guaranteed right to free and

equal elections, thereby violating the Equal Protection Clause of

the Fourteenth Amendment.

As has been previously discussed, a state has the right to reg-

ulate elections. The power to regulate elections is, however. lim-

ited by both the federal constitution and the particular state

constitutional provisions. Minnesota's constitution states that

judges shall be elected “in the manner provided by law.” This

clause, however, does not authorize the legislature to provide

advantages to incumbent judicial candidates. Petitioner submits

that the phrase is limited to laws relative to the conduct of the

election in an administrative or procedural sense, and does not

authorize the legislature to make substantive changes to a free

and unimpaired election process. If the phrase is interpreted to

allow the legislature to make substantive Statutory changes to

the election process, then the legislature could also prescribe,

for example, that only incumbents may run, or that only those

over SQ years of age may run, or that only those who have been

residerits of Minnesota for ten years may run. We conclude from

these extreme examples, that the proper interpretation of “in the

manner provided by law” is limited in scope. The clause relates

to defining the judicial districts, the number of judges, the date

of elections and the type of ballots, such as written ballots or

voting machines ballots, rules regarding absentee voting and

other ministerial aspects of the election process.

9”

This interpretation is further supported by the cannons of

statutory construction which are also applicable to constitu-

tional interpretation. Badger v. Hoidale, 88 F2d 208 (8th Cir.

1937). One canon of statutory construction states that “[t]he

legislature does not intend a result that is absurd. impossible of

execution, or unreasonable.” Minn. Stat. $645 17(1)(1947).

Certainly, if the constitutional clause is interpreted to permit the

state legislature to substantively modify the elec*:on process

without limitation, it is conceivable that the legislature might

eliminate elections of judges altogether.

The election process for judges as it currently exists, as sta-

tutorily modified, bears little resemblance to elections as they

are conducted in most democratic systems and denies free and

equal elections to the voters of Minnesota. The Minnesota leg-

islature started down a “slippery slope” when it passed the stat-

ute that requires the judicial seat to be voted upon be designated

as the incumbent's seat and that the incumbent be so designated

on the ballot. If this statute is permitted to stand, it 1s likely this

state will continue its efforts to legislatively change Minnesota's

constitution, without submitting the changes to the electors of

the State as is required when proposing constitutional amend-

ments. Minn. Const., Art. IX, $1. And, furthermore, the

changes may violate the Fourteenth Amendment more severely.

C. Minnesota Law Violates The Equal Protection Clause Of

The Fourteenth Amendment By Requiring That A Judicial

incumbent's Name Always Appear At The Top Of The List Of

Candidates. The Court's Decision To Uphold This Statute Is

In Conflict With Numerous Other Decisions.

State legislatures clearly have considerable discretion in “for-

mulating election procedures and devising regulations for the

form and content of ballots.” Gould v. Grubb, 536 P.2d at 1342:

see also, Sangemeister v. Woodard, 565 F2d 460, 465 (7th Cir

»>

4

1977): Kautenberger v. Jackson, 333 P.2d 293. 294 (Ariz

1958). The Minnesota state legislature, however. stepped

beyond the realm of constitutionally acceptable ballot formats

when it passed Minn. Stat. §204B.36, subds. 4 and 5

Minn. Stat. §204B.36, subd. 4 (1992) provides that the judi-

cial position to be voted upon be listed as the incumbent's seat.

Under current state practice, the ballot appeared in the Novem-

ber 1992 election as follows, in part:

ASSOCIATE JUSTICE

SUPREME COURT

(GARDEBRING SEAT)

(VOTE FOR ONE)

SANDRA GARDEBRING weumpeEnt

ROGER A. PETERSON

The designation of the position as “Gardebring Seat” creates

the appearance that the position belongs to Justice Gardebring.

This designation plants in the minds of the voters an association

between the position to be voted upon and the name of the

incumbent justice. The State, by requiring the designation, indi-

cates to the voters that this is the incumbent's seat and implies

that it should remain so.

An equally important consequence of requiring this format

on the ballots is that the incumbent's name will always appear at

the top of the list of candidates, despite the Statutory require-

ment that the names of the candidates be rotated within the list.“

Additionally, this format guarantees that the incumbent's name

will always appear twice on the ballot (if the Justice is running

Minn. Stat. §204D.08, subd. 3 (199?)

24

for re-election). The “incumbent first” format for ballots has

been invalidated in numerous states. °

First place position on the ballot provides an advantage to the

candidate placed there, which violates the Equal Protection

Clause of the Fourteenth Amendment.° The Eighth Circuit rec-

ognized this when it stated that “incumbent first” statutes are

unconstitutional, furthermore, that “[t]he effect of ballot place-

ment on voting is a matter of fact.” McLain v. Meier, 637 F2d at

1166.

In McLain v. Meier, 637 F2d 1159 (8th Cir. 1980), the court

invalidated as violative of the federal constitution, an “incum-

bent first” statute. The North Dakota law reserved the first col-

umn on the ballot for the party that had received the most votes

in the last congressional election. /d. at 1165-1166. The state

had justified the placement as a method for “making the ballot

as convenient and intelligible as possible for the great majority

of voters.” /d. at 1167.

Phe courtin McLain v. Meter, 637 F2d at 1167 (8th Cir, 1980) listed cases in which

courts have held “incumbent first” statutes to be unconstitutional. Netsch v. Lewts

$44 ESupp. 1280 (N.D. Hl 1972): Gould v. Grubb, 537 P2d 1337. Holtzman \

Power, 313 N_Y.S. 2d 904, 62 Misc. 2d 1029 (1970); see also Sanemetster v. Wood

ard, 565 § 2d 460 (placing Republicans first is unconstitutional); Weisberg v. Pow

ell, 417 E2d 388 Gintentional manipulation of ballot placement by Secretary of

State so as to give certain candidates first placement is unconstitutional). Cudliton

\. Bd. of Election Comm'rs, 419 E Supp. 126 (placing Republicans first 1s uncon

stitutional): Mann v. Powell, 333 ESupp. 1261(N_D. TIL. 1969) Cunconstitutional to

break ties for ballot position so as to favor incumbent): Kautenberger v. Jackson, 85

Ariz. 128, 333 P2d 293 (alphabetical listing ty unconstitutional )

Phe ettect of ballot positioning has been recognized in numerous cases and law jour

nal articles. The following articles conclude that the candidate occupying the top

position on a ballotis the recipient of a significant number of votes trom the “capri

cious or indifferent” electors. Kelman, Ballot Designations: A Second Look, 35 ;

Wayne L. Rev. 63 (1988), Scott, California Ballot Position Statutes: An Unconsti

tutional Advantage to Incumbents, 45 So. Cal. L. Rev. 365 (1972). H. Bain & D

Hecock, Ballot Postiton and the Voter's Choice (1957). The tollowing cases have

found a ballot advantage to the candidate listed in the first position. Weisberg \

Powell, 417 F2d 388, 392-93 (7th Cir. 1969). Cudliton y. Bd. of Election Comm'rs

of the County of Du Page, 419 E Supp. 126 (N.D. Il. 1976), aff'd in part and

remanded in part sub. nom. Sangemeister v. Woodard, 565 & 2d 460 (7th Cir. 1977)

cert. dented. and app. dismissed sub. nom. Ilinows State Bd. of Elections v. Sane

meister, 485 US. 39,98 S$ Ct. 1516, SS Ld. 2d $35 (1978). Gould ». Grubb, 14

Cal 3d 661. 122 Cal. Rptr 377. $36 P2d 1337 (1975). Holtzman v. Power, 313

5

The court stated that it was not clear what standard of review

to apply to the “incumbent first” statute. The court found, how-

ever, that the statute could not withstand even the minimal stan-

dard of review because the state’s justification was unsound. Jd

“|The state's] justification virtually admits that the state has

chosen to serve the convenience of those voters who support

incumbent and major party candidates at the expense of other

voters.” /d. The court found the procedure of listing the incum-

bent first to be “constitutionally unsound.” /d.

Gould v. Grubb, 122 Cal. Rptr. 377, 536 P2d 1337 (Calit

1975) involved the constitutionality of a charter provision that

automatically placed an incumbent in the top position on the

ballot. The court found that placement at the top of the list pro

vided the incumbent with an unconstitutional advantage over

non-incumbents.

Indeed, in a close race it is quite possible that a candidate

with fewer “conscious” supporters than an opponent will

actually win an election simply because his high position on

the ballot affords him the advantage of receis ing the vote of

unconcerned or uninformed voters. /n such an instance, the

challenged provision effectively undermines the fundamen-

tal democratic election tenant of majority rul

Id. at 1343, (citations omitted) (emphasis added). The court

does state, mm dicta, that a possible alternative to placing the

incumbents in the top position is to allow them to designate

themselves as incumbents on the ballot if non-incumbents were

allowed a similar opportunity as to their occupation. The court

Stated that a statute that permitted incumbent and non-incum-

bent candidates to list their current occupation, position or other

designations on the ballot might well be constitutional. /d. at

1343

N.¥.S.2d 904. 62 Mise. 2d 1020, aff'd mem. 34 \pp. Div.2d 9 S11 N.Y.S.2d

824. aff'd mem., 27 NY 2d 628, 313N YS 2d 760. 261 NE 2d 66611970 Kau

lenberver vo Jackson. 85 Az. 28 433 PId WI 1T9SKR) i Secreta?

295 Mich. 245, 294N W171 (61940). (Cases cited nMclLau Veer, 637 Fk

1166 1167)

26

While the Minnesota legislature has attempted to avoid the

appearance of favoring judicial incumbents by requiring that the

names of all candidates be rotated upon the ballot, the legisla-

ture has ensured that the incumbent's name will always appear

first by providing that the position to be voted upon be desig-

nated as the incumbent's seat. Minn. Stat. §204B.36, subd. 4.

Thus, the incumbent always receives “top billing” and those

voters uncertain of whom to vote for merely have to mark their

ballots for the candidate whose name matches the name that

appears at the top of the list. It is important to note that only

judicial incumbents receive these special designations. No other

elected officials in Minnesota are granted the advantage of hav-

ing the seat they hold designated as their seat on the ballot, nor

are they designated as an incumbent on the ballot. These stat-

utes evidence the legislature's unconstitutional intent to favor

judicial incumbents over all other candidates. Furthermore, we

submit that the designation of the position as the incumbent's

seat, i.e. “(Gardebring Seat)” after the designation of the judi-

cial position to be voted upon does nothing to eliminate any

voter confusion, and by virtue of its position is equally as vio-

lative of the Constitution as are the “incumbency first” cases.

This Court should grant review of Minnesota's Supreme

Court decision because it upholds a statute similar to an

“incumbent first” statute that is clearly at odds with decisions of

the numerous state and federal courts cited in this section.

D. Minnesota Law Providing incumbency Designation For

Judicial Candidates Violates The Equal Protection Clause Of

The Fourteenth Amendment.

Certainly if favoring incumbents by placing them in the first

place position on the ballot is unconstitutional, a fortiori, the

specific designation of “incumbent” 1s invalid. This Court's

only decision on incumbency designation occurred in its sum-

mary disposition of Binkowski v. Miller, 411 U.S. 901 (1973)’,

See discussion of Binkowski vo Miller in Kelman. Ballot Destenations: A Second

Look. 35 Wayne L. Rev. 63. 68-71 (1988)

in which the Court merely affirmed the judgment of the lower

court permitting incumbent judges to be designated as such

upon the ballots. The precedential value of such a summary dis-

position “extends no further than ‘the precise issues presented

and necessarily decided by those actions.’ A summary disposi-

tion affirms only the judgment of the court below, and no more

may be read into our action than was essential to sustain judg-

ment.” Anderson v. Celebrezze, 103 S.Ct. at 1568 n.5 (citations

omitted). Binkowski has no precedential value in regards to the

matter currently before the Court. The incumbency designation

at issue in Binkowski was specifically permitted by the Michi-

gan Constitution. Mich. Const. Art. VI, §24. The Minnesota

Constitution, however, makes no such provision, it states in rel-

evant part, “[all judges] shall be elected by the voters from the

area which they are to serve in the manner provided by law.”

Minn. Const. Art. VI, §7

Other courts have found incumbency designations to violate

the Fourteenth Amendment. in Rees v. Layton, 6 C.A.3d 815.

86 Cal. Rptr. 268 (Cal. Ct. App. 1970), the court analyzed a Los

\ngeles Election Code that forbade any candidate. except an

incumbent, from having any designation after his name on the

ballot. The court concluded that the ordinance gave “an unfair

advantage to incumbents over non-incumbents [and] that there

is nO rational basis whatsoever for the ordinance. It was an invid-

lous requirement violative of ...the fourteenth amendment of

the federal Constitution ~ Id. at 823. The California court's

decision is clearly in conflict with the Minnesota Supreme

Court's decision to uphold as constitutional a similar incum

bency designation statute, therefore, this Court should grant the

Petition to review that decision

The history of Minnesota’s Constitution includes numerous

occasions where it was suggested that the constitution be

amended to permit an alternative method of choosing judges

and justices. See Peterson y. Stafford, 490 N.W.2d at 420-423

28

(Minn. 1992). However, the method for electing judges pre-

scribed in the constitution was never substantially amended.

except for changing the numbers of years in a judicial term. The

constitution still requires that judges and justices be elected.

The legislature, however, adopted Minn. Stat. §204B.36,

subds. 4 and 5, in an attempt to bypass the constitution and pro

vide incumbent judges and justices with an advantage over all

other candidates. The legislature has, in effect, amended Min

nesotas Constitution without submitting the amendment to the

electorate. This is impermissible and, therefore, the resulting

designations are violative of the Equal Protection Clause of the

Fourteenth Amendment of the Federal Constitution.

CONCLUSION

To resolve whether a state statute that provides voting cues

which create ballot advantages for incumbent judicial candi

dates violates the Equal Protection Clause of the Fourteenth

Amendment of the United States as has been held by other cir-

cuit and state courts, this Court should grant the Petition and

reverse the error of the Minnesota Supreme Court.

Respectfully Submitted,

March 1, 1993

Roger A. Peterson

Counsel of Record

PETERSON, ENGBERG & PETERSON

Therese M. Dosch

700 Title Insurance Building

Minneapolis. MN 55401-2498

(612) 338-6743

lA

APPENDIX TABLE OF CONTENTS

Opinion dated October 9, 1992

Petition

Ballot

Page

3A

ISA

22A

ROGER A. PETERSON, Petitioner.

\

R.H. STAFFORD, Washington County

Auditor, Joan Anderson Growe,

secretary of State, Respondents

No. C6-92-1658

Supreme Court of Minnesota

Oct. 9, 1992

Candidate for judicial office filed petition challenging consti

tutionality of statutes governing judicial elections. The Supreme

Court, en banc, Yetka, J., held that, under rational basis test.

statute prescribing form of ballot used in judicial elections and

statute mandating “incumbency” designation on ballot do not

violate equal protection clauses of State or Federal

Constitutions.

Petition denied.

Constitutional Law—225.2(6)

Judges - 3

Under rational basis test, statute prescribing form of ballot

used in judicial elections and statute mandating “incumbency”

designation on ballot do not violate equal protection clauses of

State or Federal Constitutions, despite claim that statutes oper-

ate individually and in concert to create unfair advantage for

judicial incumbent; statutes are justified by legitimate consid

erations Of assuring able, independent and stable judiciary while

al same time requiring incumbent judges to submit to voter

appraisal in open election. M.S.A. §204B.36, subds. 4. 5:

M.S.A. Const. Art. 1, § 2; U.S.C.A Const.Amend. 14

4A

SYLLABUS BY THE COURT

Minn. Stat. $204B.36, subd. 4, (1990), prescribing the form

of the ballot used in judicial elections, and Minn. Stat.

$204B.36, subd. 5 (1990), mandating the “incumbency” des-

iznavion on the ballot, Go not viorate the equal protection clause

of the fourteenth amendment of the United States Constitution

or Minn. Const. art. 1, 82. Gustafson v. Holm, 232 Minn. 118,

44 N.W.2d 443 (1950), reaffirmed.

Roger A. Peterson, Therese M. Dosch, Minneapolis, for

petitioner.

Jocelyn F Olson, Asst. Atty. Gen., St. Paul, for Secretary of

State.

Richard D. Hodsdon, Washington County Atty.’s Office,

Stillwater, for Washington County Auditor.

John E. Grzybek, St. Paul, Minnesota.

Deborah Gilman, Civil Liberties Union, Minneapolis, tor

amicus curiae Minnesota Civil Liberties Union.

Heard, considered and decided by the court en banc.

YETKA, Justice.

On September |, 1992, Roger A. Peterson, a candidate for

the office of Associate Justice of the Minnesota Supreme Court,

filed a petition pursuant to Minn. Stat. $204B.44 (1990) invok-

ing the original jurisdiction of the supreme court! and seeking a

judicial declaration of the unconstitutionality of Minn. Stat.

§$204B.36, subds. 4, 5 (1990). This opinion confirms the order

filed on September 23, 1992 denying the petition.

The Honorable Harold W. Schultz, Retired Judge of the District Court, appointed as

acting Associate Justice pursuant to Minn. Const. art. 6, 88 2 and 10. and Minn

Stat. $2.724, subds. 1, 2 (1990), and the members of this court who have not exer-

cised their right of recusal have concluded that it is not only appropriate, but nec-

essary in fulfillment of our judicial responsibility to hear and decide this

controversy. The circumstances relating to the term of office of each participating

justice and the operation of Minn. Stat. §§ 490.121, subd. 12 and 490.125 (1990),

the mandatory judicial retirement law, make certain the tact that not one member

participating in this proceeding will ever stand again for judicial election in the

State of Minnesota and that, accordingly, there can be neither the potential for nor

the perception of a conflict of interest

SA

On July 15, 1992, petitioner filed an affidavit of candidacy,

identifying the office of associate justice now held by Associate

Justice Sandra S. Gardebring as the particular office for which

he is a candidate. Minn. Stat. §$204B.06, subd. 6 (1990).2 The

gravamen of this petition, filed 48 days later, is that the form of

the ballot used in judicial elections, as defined by Minn. Stat.

8204B.36, subd. 4,‘ and the incumbency designation mandated

by Minn. Stat. §204B.36, subd. 5,4 operate individually and in

concert to create an unfair advantage for the judicial incumbent.

This advantage, petitioner contends, is not only inconsistent

with the letter and spirit of Minn. Stat. §204B.35, subd. 2.5 but

Minn. Stat. $204B.06, subd. 6 provides in pertinent part

\n individual who files as a candidate for the office of associate justice of the

supreme court, "** shall state in the affidavit of candidacy the office of the par

ticular justice or judge for which the individual is a candidate. The individual shall

be a candidate only tor the office identified in the affidavit. Each justice of the

supreme court *** is deemed to hold a separate nonpartisan office

Minn. Stat. $204B 36, subd. 4 provides as follows

The official ballot shal! contain the names of all candidates for each judicial

office and shall state the number of those candidates tor whom a voter may

vote. The title of each judicial office shall be printed on the official primary

and general election ballot as follows

(a) In the case of the supreme court: “Chief justice (or associate justice)

supreme court (last name of incumbent) seat”:

(b) In the case of the court of appeals: “Judge - court of appeals (last name

of incumbent) seat”;

(cC) In the case of the district court: “Judge - (number) district court (last

name of incumbent) seat”: or

(d) In the case of the county court: “Judge - (number) county court (last

name of incumbent) seat.”

Minn. Stat. $204B 36, subd. 5 provides as follows

It a chief justice, associate justice, or judge is a candidate to succeed again, the

word “incumbent” shall be printed after that judge's name as a candidate

Minn. Stat. §$204B.35, subd. 2 provides as follows

Ballots shall be prepared in a manner that enables the voters to understand

Which questions are to be voted upon and the identity and number of candi

dates to be voted tor in each office and to designate their choices easily and

accurately. The name of a candidate shall not appear on a ballot in any way that

gives the candidate an advantage over an opponent, inc luding words descrip

live of the candidate's occupation, qualifications, principles, or opinions,

except as otherwise provided by law

6A

also is violative of the equal protection clause of the fourteenth

amendment of the United States Constitution and Minn. Const.

art. 1, §2.°

The petitioner's challenge is to the essence of the traditional

judicial election process and, while he is now a candidate tor

judicial office, the claims asserted have no specific relation to

his candidacy. In that context and upon a contention by the

respondent secretary of state, we first address the timeliness of

the petition.

The very nature of matters implicating election laws and pro-

ceedings routinely requires expeditious consideration and dis-

position by the courts facing considerable time constraints

imposed by the ballot preparation and distribution process. As a

result, we have examined applications for relief not only on their

merits, but also from the perspective of whether the applicant

acted promptly in initiating proceedings. See Mattson vy.

McKenna, 301 Minn, 103, 222 N.W.2d 273 (1974).’

The petitioner claims to have been unaware of the fact that the

ballot form would include an incumbency designation until he

received his absentee ballot in late August 1992; yet, that des-

ignation has appeared on every judicial election ballot on which

a sitting judge has sought reelection since 1949.* Moreover,

issues substantially similar to those raised herein were

addressed and decided in 1950 in Gustafson v. Holm, 232 Minn.

118,44 N.W.2d 443 (1950). Under those circumstances, we are

not persuaded that petitioner, who allowed 48 days to elapse

‘Minn. Const. art. 1, $2 provides as follows:

No member of this state shall be disfranchised or deprived of any of the rights

or privileges secured to any citizen thereof, unless by the law of the land or the

judgement of his peers

See also Marsh v. Holm, 238 Minn. 25, 28, 55 N.W.2d 302. 304 (1952). Moe 1

Alsop, 288 Minn. 323, 331, 180 N.W.2d 255, 260 (1970); Parsons v. Hickey, 294

Minn. $537, 539, 201 N.W.2d 150, 152 (1972).

‘See Minn. Stat. $205.82 (1950): Gustafson v. Holm, 232 Minn. 118. 44 N.W. 2d 443

(1950).

7A

trom the time of filing his affidavit of candidacy to the filing of

his petition, acted with dispatch in asserting a challenge to leg-

islation which has existed in various forms but in substantially

similar design for over 40 years,

Nevertheless, because of the nature of these proceedings, we

have chosen to address the merits of this broad challenge to the

traditional judicial election process. Specifically, petitioner

contends that the designation on the ballot by entitlement as the

“(name of incumbent) seat,” coupled with the descriptive word

after the incumbent candidate’s name. violates equal protection

constitutional guarantees by creating and preserving to the

incumbent an unfair advantage. Further, he urges the court to

invalidate statutes which purport to treat judicial incumbent

candidates differently from any other candidates for public

office in the State of Minnesota. In our analysis of this focal

issue, we take the Opportunity to identify the historical under-

pinnings and to trace brietly the evolution of this judicial elec-

tion process.

The methods by which the federal system and other states ini-

tially select and then elect or retain judges are varied, yet the

explicit or implicit goal of the constitutional provisions and ena-

bling legislation is the same: to create and maintain an indepen-

dent judiciary, as free from political, economic and social

Pressure as possible so judges can decide cases without those

influences. That that goal guided the framers of the federal con-

stitution to grant life tenure to judges is evidenced by the writ-

ings of Alexander Hamilton’ which expressed his concern that

lite tenure would provide judges sufficient security to allow

them to rule with their consciences and according to the consti-

tution, rather than to bow to political notions. While the framers

For example, in The Federalist No. 78. at 484 (GP Putnam Ed. 1923),

“As nothing can contribute so much to its [the judiciary’s| firmness and independence

ay permanency in office, this quality may therefore be justly regarded as an indis

pensable ingredient in its constitution and. in a great Measure, as the citadel of the

public justice and the public security.”

SA

of our state constitution have developed a system of selection

and election quite different from that federal scheme, they too,

designed a plan to recognize the uniqueness and independence

of the state judiciary.

As early as 1857, those who attended the two separate state

constitutional conventions'’ devoted considerable debate to the

process by which the judiciary was to be selected and concluded

that the now-recognized goal of distinguishing judicial elections

from elections for other offices could best be accomplished by

providing judges with 7-year terms.'' In practical effect,

because the length of term differed from that of other elective

offices, judicial elections were held at times other than those

routinely scheduled for those other offices. However, after

1883, when the term was reduced to 6 years,'* the difficulties

associated with partisan judicial elections became more evi-

dent. Thus, the selection debate resurfaced in significant

respects in 1912 when the legislature enacted separate, nonpar-

tisan ballot legislation;'’ in 1948 when a special constitutional

convention composed of public and legislative members rec-

ommended wholesale revisions to the judicial article of the state

constitution, detailing, among other practices dealing with reg-

ulation of the judiciary, a comprehensive scheme for elections

In Minnesota, there were two constitutional conventions, one held each by the

republicans and by the democrats. The product of those separate meetings were

two constitutional dratts which, through the process of compromise and negotia

tion, were consolidated and then submitted to the voters for ratification. See, e.g

M.S.A. Const., Jerritorial Existence & Constitutional Statehood, at 151-52

(1976)

Minn. Const. art. 6, 83 (1857) provides

“The judges of the supreme court shall be elected by the electors of the state at large

nd their term of office shal’ be seven years, and until their successors are elected

and qualified.”

Amendment to art. 6, 83. proposed by 1883 Gen. Laws. ch. 3. and adopted at the

general election of 1883; 1885 Gen. Laws, p. 2

1912 Extra Session Laws, ch

a

QA

when an incumbent is seeking reelection; '* in the 1949 Statutory

While

ho constitutional amendments were approved in response to the committee's

report, the proposals for new sections 9, 10, 12, and 13 of the judiciary article

demonstrated the problems facing judges during the election process and proposed

SOLUTIONS

Sec. 9. Terms of Office; Election, Vacancies; Re-election. The term of off

a supreme court justices and all judees shall be six Cars and untti the

«CCcessors are qualified, and the, shall be « lected by the electors of the state

district, county, municipality, or other territory wherein the are to Serve

Where more than one posttton on the same court ts to be filled at an election

ind a ncumpbde? 5 ¢ vIDIE De a candidate to succeed himself CU h can

fale Sna Speciyyy and the officia DaUOt SNhali snow. the POSttton for which he

indidate

Pie lO kiSaGIUTe MAN provide that a vacan n the office of justice of the

ipreme Cou Shall De filled by appointment by ihe governor from a list of three

DETSONS row nate ad D\ oi hile ” Partisan ud la COMmMMISSioOn ( reale d Dy fav j

Ders nso appointed snati serve until his SUCCESSOF LS Cle Cled for a Six-vear term

ine first general election held more than one vear after the occurrence Of the

vacancy, and when a justice once has been elected and ts a ¢ andidate for re

ection for the next and succee ding terms, the vote shall be on the Guestion

MWe thre rne shalt he continued in office

,

Comment: A unitorm term of office of six vears is recommended for all judges

he method of selection provided in the second sentence has been in SUCCESS

tul operation in Ohio. Where several incumbents are running for re election

each should stand or fall on the basis of his own record. The present system

does not permit this since opposing candidates run against the field

While judges in this state are now elected, the usual practice has been that

Judges first ascend the bench by appointment by the governor on a vacancy

occurring. The voters, with some exceptions, have on succeeding elections

returned the judges to the bench. The second paragraph of this proposed sec

tron authorizes the legislature to put this practice on a formal legal basis with

the provision added that the governor shall make his appointment from rec

mmendations received from a nonpartisan commission. This method of

selection has been in operation in Missouri since 1941. The electorate there

has twice approved it, once by adopting it as a constitutional amendment and

again Dy refusing to repeal it. It is also in operation in California in modified

lorm. It is the method of selection recommended by the American Bar Asso

cation. For a description of the plan and its successful operation in Missourt,

see article by Justice Douglas of the Missouri Supreme Court entitled, “Mis

sourt Plan Works Well in Actual Results” in 33 Am. Bar Assn.Jr. 1169 (1947)

lhe plan has been modified here to become operative only when an appointed

judge has once been chosen in competition with other candidates at a general

election

Sec. 10. Terms Extended. When a justice o judge attains the age of 67 vears

aurine his ferm of office for whi h elec led, such term is hereby extended unti

the date of his compulsory retirement under Section 12

retirement age, he should be permitted to continue in office without standing

tor reelection

Comment: The commission feels that when a judge ts within three years of the

Sec. 12. Retirement Supreme court uSTICeS, district and probate court

upon reaching the age of /0 vears. When ine administ?

é?i ert fie ‘7 thre "OVE rnor fnat [ appe irs [nat ad? Sid rl TAY i¢ oy <<

LOA

amendments involving the forerunner of the statutory provi-

sions here at issue;'> again in the 1956 constitutional amend-

ments to article 6, sections 8, 10 and 11;'° and, finally, in 1972

is so incapactlale adas SuUDSTANTIAUY fo prevent hun from pe rformine is Jud d

duties, the governor Shaul GPPotnt 4 COMMISSION OF three Persons to ingutre ul

fhe circumstances. On their recommendation the vernor may retire SUCH JUS

,

mY

le + p> , > ii ; ; oe : ve ,

cé or judge from office. Ketirement allowances for a justice or judee retiring

hereunder who has held judicial office continually for ten or more vears imme

dlatetyv prece ding his retirement shall De provided DV law

Comment: The source of this section is the recent constitution adopted in New

Jersey. See its judiciary article. Section VI, subd. 3 and 5. New York also has

a compulsory retirement age of 70 years. This age ts also the most commonly

accepted one in voluntary retirement plans.

Sec. 13. Appointment If the office of a justice or ud ge becomes vacant, exce pl

as otherwise provided by section 9, the governor shall appoint a qualified per

son to fill the vacancy to hold office until his successor ts elected and qualified

This successor shall be elected at the first general election held more than one

vear after the occurrence of the vacancy and his term of office shall be six ve

ars

and until his successor ts qualified

Comment: This section increases the spread between appointment and the

appointee’s subsequent candidacy for election from 30 days to one year. The

30-day period, as provided in the present Section 10, has proved too short

Complications arise when a vacancy occurs after the primary election but

more than 30 days prior to the final election. In addition, the short period does

not give sufficient time to enable observation of the competence developed by

the appointee prior to the election

Phe provision that the election shal! be for the full term of office incorporates

the judicial interpretation given to the present provisions. See, Enger v. Holm.

213 Minn. 154; 6 N.W.(2) 101 (1942). Report of the Constitutional Commis

sion of Minnesota, at 42-45 (1948)

Minn. Stat. 8205.82 (1950)

Minn. Const. art. 6, 88 (1956) provides

Che term of office of all judges shall be six years and until their successors are

qualified, and they shall be elected in the manner provided by law by the elec

tors of the state, district, county, municipality, or other territory wherein they

are to serve

Minn. Const. art. 6, 810 (1956) provides

The legislature may provide by law tor retirement of all judges tor the exten

sion of the term of any judge who shall become eligible for retirement within

three years after expiration of the term for which he ts selected and tor the

removal of any judge who ts incapacitated while in office

Minn. Const. art. 6, $11 (1956) provides

Whenever there is a vacancy in the office of judge the governor shall appoint

in the manner provided by law a qualified person to fill the vacancy, to hold

office until his successor is elected and qualified. The successor sha

elected for a six year term at the next general election occurring more than one

year after such appointment

| be

L1A

in a report in which a newly convened constitutional study com-

mission subcommittee recommended the implementation of a

“Missouri plan”"” in addition to a change in the basic structure

of the judiciary.

Reflected in the considerable memorials to the recurring

debates is the common thread of both public and legislative rec-

ognition that judicial elections are unique in this state’s compre-

hensive elective scheme. demonstrating the fact that the powers

conferred on the judicial branch differ markedly from those

exercised by the other two branches of government.

and such other courts *** as the legislature may establish.” To

assure competence in the exercise of the judicial power, the con-

stitution specifies that holders of a judicial office must be

“learned in the law.” Minn. Const. art. 6. §5. Implicit in this

requirement is recognition that those elected as judges will be

subject to the restrictive canons of conduct governing the

profession of law. '*

The need for a competent, impartial, and independent judi-

clary Creates, however, certain tensions when the judicial office

is an elective office, both in the election process itself and in the

performance of the duties of the office. While getting elected

may be a not unimportant prerequisite of holding public office,

it was felt this prerequisite should not detract from the judicial

function to decide cases free from political maneuvering and in

[he Missouri plan has been simply defined as follows

Under this plan, when a vacancy in a judicial office occurs, a non-partisan

judicial Commission submits three names to the governor who appoints one of

them to fill the vacancy. After holding office for a limited period, the name of

the appointee is submitted to the electorate w ithout a competing candidate on

the question: ‘Shall Judge be retained in

office?” If a majority of the votes cast on the question are in the affirmative

the appointee remains in office for a new and full ter m. If the vote is in the neg

alive, the process is repeated

Pirsig. The Proposed Amendment of the Judiciar\ Article of the Minnesota Con

stitution, 40 Minn. L. Rev. 815, 838 (1956)

See Code of Judicial Conduct. Canon 7 | 1Y89)

I2A

accordance with the law, regardless whether a decision ts, at the

time, popular or unpopular. To assure a measure of fair-mind-

edness and impartiality, the legislature, in 1912, decreed that

elections for judicial office be nonpartisan.

This tension inherent in the judicial election process was rec-

ognized in a committee report to the 1972 Constitutional Study

Commission, which urged the adoption of a retention-type elec-

tion for incumbent judges, commenting:

The committee also believes that additional qualified law-

yers will seek appointment to judicial office under such a

method of selection. Under the present system, too many

qualified and competent lawyers who are successful practi-

tioners decline to be considered for fear they will give up

their practice only to be defeated by a politician with a pop-

ular name at some future election.

Judicial Branch Committee Report, Minnesota Constitutional

Study Commission, at 24-25 (1972). In its report, the commit-

tee testified to the difficulties facing judges who seek reelection

and the restrictions placed upon their candidacy:

No one debates the desirability of having judges responsive

to the people. Nevertheless, the public finds it distasteful for

judges to become embroiled in politics. They have no plat-

form, they can make no promises, and they must remain

completely uncommitted to other persons in politics or any

other area of civic activity. It is unbecoming tor judges to

become so deeply immersed in civic matters that they may

be disqualified to consider the merits of the controversial

issues. The method of retention at election as proposed in

Section 7 [as an amendment to art. 6, the judiciary article]

would allow the public to reflect favorably or unfavorably on

a judge’s competence in office and, thus, retain ultimate

control of the judiciary in the hands of the voting public.

Id.

While this state has opted for the election of judges and has

declined to adopt a Missouri-type retention plan, it has provided

—

'

a

>

a

its Own variation of the election process. Section 10 of the orig-

inal judiciary article provided for the filling of a judicial

vacancy, not by special election but by appointment of the ZOv-

ernor, with an election to follow at the next annual election

occurring more than 30 days after the vacancy happens. In

1972, this provision was amended to provide that an election to

succeed the appointee be held “at the next general election

occurring more than one year after the appointment.”’! It

appears the extension of the time before an election for the office

was, in the words of the 1972 subcommittee. “to allow the pub-

lic to reflect favorably or unfavorably on a judge’s competence in

office,” while, at the same time. “retain|ing] ultimate control of

the judiciary in the hands of the voting public.” To achieve this

purpose, it appears that the legislature considered it appropriate

tor the ballot to inform the voters which candidate was seeking

retention.

The foregoing brief constitutional history amply supports the

legislative prerogative of distinguishing judicial elections in

manner and form from those legislative and executive elections

conducted in the traditional political, partisan sense. It is

against this background that the Incumbency designations on

judicial ballots, enacted in 1949. must be examined. We reach.

then, the question before us. namely, whether the distinctive

legislative treatment given judicial ballots survives equal pro-

tection scrutiny.

The petitioner appears to proceed from the assumption that

the level of equal protection scrutiny 1s an open question with

regard to judicial elections. However, the concept of an appli-

cation of something akin to the rational basis test to judicial

election practices is neither new nor novel. While we did not

identify it as such in Gustafson v. Holm, 232 Minn. | 18, 44

N.W.2d 443 (1950), we essentially applied that same rational

basis analysis in discussing the historical significance and vital-

The commission determined to leave the power of judicial appointment in the hands

t the governor, but added to the committees recommendation a provision that the

, or ‘ 1] . ; } |

rovernor may fill pudicial vacancies created by in umbents not filing for reelection

4A

ity of the alley system concept, by which each justice holds a

separate office or seat, and in discussing the basis for allowing

the designation of “incumbent” to identify a present justice

seeking reelection.

In Gustafson, we stressed the fact that the purpose of these

two separate identifications is informational, not to give the

incumbent an advantage: the fact that in a particular election this

designation may provide the incumbent with an advantage over

other candidates does not necessarily invalidate the statute. We

reasoned:

Use of the word “incumbent” following the candidate's

name, simply informs the voter of the person who presently

holds the position. In assisting voters to cast their votes

intelligently for offices unfamiliar to the average voter, it 1s

only a matter of fairness that he be advised who the present

judge is. If he then believes that the judge should be

retained, he has the opportunity of expressing his opinion

by his vote. If he feels that the present judge should be

replaced, he has a like opportunity of so indicating his opin-

ion. The underlying purpose of the legislation is to identify

the candidate so that the voter will know whom he Is voting

for. In order to enable the electorate to know who candidates

are, Itis not always possible to treat all candidates with abso-

lute equality.

232 Minn. at 126-27, 44 N.W.2d at 447.

The Gustafson decision did not specifically address the equal

protection argument as raised by the petitioner here. However,

all of the ingredients are found in the decision to compel its

application to reach the conclusion that the statutory ballot form

framework withstands scrutiny under our modern rational basis

test. We therefore reaffirm our holding in Gustafson that Minn

Stat. §205.82 (1950), the predecessor of current Minn. Stat

§204B.36, subds. 4 and 5, does not contravene the equal pro-

tection guarantees of the state constitution. A logical extension

ISA

and application of the “separate seat” concept of a judicial office

is that the legislature is authorized to select a manner of identi-

fication of that seat which promotes and clarifies the distinction

between the separate offices. Similarly, that same “incumbency

analysis” supports a conclusion that the continued use of the

term “incumbent” to denote the person who presently holds the

office for purposes of informing the voter is no less valid today

than it was in 1950. We noted in Gustafson. the designation is

intended for the benefit of the voter, not the candidate. Even

though the candidate indirectly may derive some benefit

from such identification, it does not follow that the legisla-

tion Is unconstitutional!

232 Minn. at 127-128. 44 N.W2qd at 448. See also Dougherty \

Holm, 232 Minn. 68, 44 N.W.2d 83 (1950)

In Ulland v. Growe, 262 N.W.2d 412 (Minn. 1978) cert

denied. sub nom. Bere v. Growe. 436 U.S. 927, 98 S.Ct. 2822.

56 L.Ed.2d 770 (1978). the constitutionality of a statute gov-

erning ballot placement of candidates for legislative or execu-

live partisan office was challenged by plaintiff, who as an

independent candidate pointed out that he would never have his

name appear first on the ballot. This court held that the ballot

classifications were not without a rational basis and, this being

SO, It Was not this court’s role to interfere. We quoted with

approval from Clough v. Guzzi, 416 F Supp. 1057, 1068

(D.Mass. 1976):

The fact that some statistical advantage may at the same

lime accrue to one of the candidates by virtue of his or her

incumbency does not for constitutional purposes invalidate

that otherwise legitimate purpose, especially where that

advantage remains problematic and variable from election to

election. And whether for purposes of a more absolute fair

ness that advantage warrants a different Statutory scheme is

properly a legislative consideration

loA

262 N.W.2d at 418.

Recognizing the quite different role the judicial branch plays

In our government, the legislature has historically treated judi

clal election ballots differently from ballots for other elective

offices. The reason for this different treatment is evident trom

the history of the judiciary article in our constitution, its statu

tory implementation over the years, and past judicial precedent.

Whatever advantage there may be to the incumbent from the

incumbency designation on the ballot, it is clear that the over

riding purpose of the ballot designation has been to assure an

able, independent and stable judiciary while at the same time

requiring incumbent judges to submit to voter appraisal in an

open election. These are legitimate considerations which satisfy

the equal protection clause of our state constitution as well as the

federal constitution

The task of the voter in considering candidates for judicial

office is a difficult one, made more difficult by the nature of the

office itself—a position that requires its holder to studiously

avoid partisan politics, to refrain from all discussions of public

Issues and to restrict one’s membership and participation in

organizations to those primarily of a professional nature. The

incumbency designation is but one means by which the voter

can be informed that the individual seeking reelection offers to

the voters as a qualification for candidacy that fact of present

judicial service.

It seems clear that Minnesota has adopted its own middle-ot

the-road approach to judicial selection. The open election

process has been retained, but with a quasi-retention feature

which simply informs the voter, without cormment, who ts the

incumbent candidate whose performance Is under review and

who 1s the non-incumbent challenger. This arrangement acts as

a check on the gubernatorial appointment process by keeping

the ultimate choice with the voters, while at the same time rec

ognizing the unique independent nature of the judicial function

I7A

This approach is authorized by our constitution as it has devel

oped over the years, and its features, as we have demonstrated

and previously held, do not violate the equal protection process

of either the federal or state constitution.

Petition denied.

KEITH, C.J., and TOMLJANOVICH and GARDEBRING.

JJ., took no part in the consideration or decision of this matter.

(Case as appeared in Advance Sheet for North Western

Reporter. )

ISA

STATE OF MINNESOTA

IN SUPREME COURT

ROGER A. PETERSON,

Petitioner,

VS,

R.H. STAFFORD, Washington

County Auditor,

and

JOAN ANDERSON GROWE.,

Secretary of State,

Respondents.

PETITION FILED PURSUANT TO

MINNESOTA STATUTE 204B.44

TO: The Supreme Court of the State of Minnesota:

COMES NOW PETITIONER, Roger A. Peterson, pursuant

to Minn. Stat. $204B.44, and states and alleges as follows:

1. Petitioner ts a citizen of the State of Minnesota, a regis-

tered voter of Washington County, Minnesota and an attorney

licensed to practice law in the State of Minnesota. That he tn all

respects meets each and every requirement of the statutes and

Constitution of the State of Minnesota to be a candidate for jus-

tice of the Supreme Court of Minnesota.

2. Respondent, R.H. Stafford is the County Auditor for

Washington County, Minnesota. That Respondent Stafford ts

the Washington County official responsible for ensuring that the

ballots are printed tor the general election to be held November

3, 1992.

3. Respondent Joan Anderson Growe ts the Secretary of

State of the State of Minnesota.

4. That pursuant to Minnesota Constitution Article 6, 7 all

judges are to be elected for six year terms. That the position of

chiet justice and the position of three associate justices are to be

i ii

ISA

tilled by the general election to be held November 3, 1992. Peti-

tioner, Roger A. Peterson, has filed to run for the position of

associate justice of the Minnesota Supreme Court which is cur-

rently held by Justice Sandra Gardebring. No other candidate

has filed for this position.

5. That Petitioner has obtained a Washington County

absentee ballot for the primary election to be held on September

15, 1992 (see attached Exhibit A).

6. That said primary ballot, pursuant to Minn. Stat.

$204B.36, subd. 4, lists the title of the two judicial offices in

which more than two candidates have filed as the current jus-

tice’s seat. That said primary ballot, pursuant to Minn. Stat.

$204B.36, subd. 5, lists the word “Incumbent” after the name

of the chief justice or associate justice who is a candidate to suc-

ceed again. The ballot appears as follows:

CHIEF JUSTICE

SUPREME COURT

(KEITH SEAT)

(VOTE FOR ONE)

ROSS A. PHELPS

MICHAEL C. DEMOSS

A.M. (SANDY) KEITH — Incumbent

ASSOCIATE JUSTICE

SUPREME COURT

(YETKA SEAT)

(VOTE FOR ONE)

ALAN C. PAGE

EDWARD W. BEARSE

KEVIN JOHNSON

20A

7. That upon information and belief, Petitioner believes

that pursuant to Minn. Stat. §$204B.36, subd. 4, the ballots for

the general election will designate the position he has filed for as

the seat belonging to the justice currently on the bench.

8. That upon information and beliet, Petitioner believes

that pursuant to Minn. Stat. §204B.36, subd. 5, the ballots for

the general election will designate the justice against whom he

has filed as “Incumbent”.

9. Petitioner alleges that Minn. Stat. $204B.36, subd. 4

denies him, and all parties similarly situated, Equal Protection

and Due Process guaranteed by the Fourteenth Amendment of

the U.S. Constitution and Article |, 2 of the Minnesota Consti-

tution.

10. Petitioner alleges that Minn. Stat. §204B.36, subd. 5

denies him, and all parties similarly situated, Equal Protection

and Due Process guaranteed by the Fourteenth Amendment of

the U.S.‘Constitution and Article |, 2 of the Minnesota Consti-

tution.

11. Petitioner alleges that any designation of a position as

the seat of the justice currently holding the position and identi-

fying that justice as an incumbent provides an advantage to the

justice over the challenger in violation of Minn. Stat. §204B.35,

subd. 2 and the Minnesota Constitution.

12. Petitioner alleges that the designation of the contested

position as a particular justice's seat and the designation of the

current justice as “Incumbent” as required by Minn. Stat.

$204B .36, subds. 4 and 5 do not in any way serve to clarify the

position for election, because there is only one chief justice in

Minnesota and because each candidate files for a specific asso-

Clate justice seat and must designate the seat at the time of filing.

13. Petitioner alleges that the designation of the seat on the

ballot as a particular justice's seat as required by Minn. Stat.

§$204B.36, subd. 4, connotes a possessory interest in the seat

21A

and, without serving any purpose to the voter, provides that the

name of the justice currently holding the seat appears twice on

the ballot.

14. Petitioner alleges that Minn. Stat. §204B.36, subds. 4

and 5 are unconstitutional, in that the designation of the seat by

the name of the justice and the designation of incumbency pro-

vides an advantage to the sitting justice in violation of the con-

duct of a fair election as required by the Minnesota and United

States Constitutions and a violation of Minn. Stat. §$204B.35,

subd. 2.

IS. Accordingly, Petitioner seeks an Order of this Court as

follows:

(a) Declaring Minn. Stat. §204B.36, subd. 4 and Minn.

Stat. $204B.36, subd. 5 to be unconstitutional.

(b) Ordering Respondent Growe to order all County Audi-

tors in the State of Minnesota to strike from all ballots

the designations specified in Minn. Stat. $204B.36,

subds. 4 and 5

(c) Such other relief as is just and appropriate

This petition is based on the facts and law set forth herein, the

attached Affidavit of Petitioner dated August 31, 1992 and a

forthcoming brief citing additional authority and argument.

Dated this SEE | Te

RESPECTFULLY SUBMITTED,

PETERSON, ENGBERG & PETERSON

Roger A. Peterson (86332)

Therese M. Dosch (219101)

Attorneys for Petitioner

700 Title Insurance Building

Minneapolis, MN 55401-2498

(612) 338-6743

22A

NONPARTISAN PRIMARY BALLOT

Hennepin County Minnesota

September 15, 1992

INSTRUCTIONS TO VOTERS

TO VOTE, COMPLETE THE ARROW POINTING TO

YOUR CHOICE LIKE THIS

COUNTY OFFICES JUDICIAL OFFICES

SUBURBAN REGIONAL CHIEF JUSTICE

PARK COMMISSIONER SUPREME COURT

DISTRICT 3 (KEITH SEAT)

FOUR YEAR TERM (vote for one)

(vote for one)

John W. (Jack) Gausman A.M. (Sandy) Keith is

Jason EM. Moede Ross A. Phelps

Marcia Vesely Taubr Michael C. Demoss

VOTE BOTH FRONT

AND BACK OF BALLOT

Ward Precinct

Judge

Judge

STATE NONPARTISAN PRIMARY BALLOT

Hennepin County, Minnesota

September 15, 1992

INSTRUCTIONS TO VOTERS

LO VOTI

. COMPLETE THE ARROW POINTING TO

YOUR CHOICE LIKE THIS

JUDICIAL OFFICES

ASSOCIATE JUSTIC!

SUPREME COURT

(YETKA SEAT)

(vote for one)

Kevin Johnson

\lan C. Page

Edw ard W Beal Se