# Petition for Writ of Certiorari — Peterson v. Stafford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2232%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 1033 ## Text 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 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2232%3A1. Public record. Not legal advice.