Oops. Three of the five retired judges who have been specially appointed to hear a case involving the re-election of a Supreme Court justice are publicly supporting the justice’s re-election bid.
The justice is Lorie Gildea, who will run in November for her first election to the court. Three lawyers are challenging Gildea and one of them, Jill Clark, has filed a suit with the Minnesota Supreme Court seeking to have Gildea’s name taken off the ballot or, if that fails, to prohibit Gildea from being designated on the ballot as an incumbent (as incumbent justice normally are). The basis of Clark’s challenge is aside from the Oops described herein, but you can read about it here if you like.
The Supreme Court itself would normally hear such a challenge. Gildea obviously must recuse herself, and has. But because all of the current sitting justices are Gildea’s colleagues, and perhaps because they have a personal stake in the question of whether incumbent justices should be labeled as justices on the ballot, the entire court recused itself and Chief Justice Eric Magnuson recruited and appointed five retired justices to hear the case.
The five are retired Justices James H. Gilbert, Sam Hanson, Edward C. Stringer, Esther M. Tomljanovich and Lawrence Yetka. The case has been set on a fast schedule that calls for the acting justices to hear arguments Tuesday.
Now the problem, which I guess I gave away in the lede paragraph: Three of the five — Stringer, Tomljanovich and Hanson — are listed on Gildea’s campaign website as “public supporters” of Gildea’s re-election bid, which I assume (but I am no judicial ethics maven) could be a problem with them participating in the case.
I don’t know if Chief Justice Magnuson was aware of the apparent conflict when he appointed the three and I have a call in requesting an interview on the topic. But Magnuson apparently is aware of it now because Clark (the challenger who brought the initials action) filed papers today protesting the presence on the panel of the Gildea supporters.
Kyle Christopherson, a spokester for the court, said that as of this moment, the Tuesday hearing is still on the schedule but the court has only recently become aware of Clark’s latest filing. In the filing, Clark says she assumes that the three will disqualify themselves.
Late Friday Update
Not long after the above was posted, the three Gildea supporters recused themselves from sitting on the special and three new retired judges were appointed to take their places. They are: Judges Bruce D. Willis and Roger M. Klaphake, both current members of the state Court of Appeals, and Hennepin District Court Judge Marilynn Rosenbaum.
None of them are listed as public supporters of Gildea. There is a Carol Klaphake listed. I have put in a call to Judge Klaphake to ask about that. I’ve also called Jill Clark to see whether she has any further objections. The case remains set for a hearing on Tuesday.
As to how the three Gildea supporters came to be appointed on the first round, spokester Christopherson informed me that the court commissioner was assigned to call retired justices to inquire about their willingness and availability to hear the case. He says the commissioner asked the judges whether they had any potential conflicts in the case and “none were identified at the time by those selected.” Seems like they might have mentioned that they had agreed to listed as public supporters of one of the parties in the case.
Oops again. Yes indeed, the Carol Klaphake who is listed among the public supporters of Justice Gildea is indeed the wife of Judge Roger Klaphake. Now he has recused himself and been replaced by the just-appointed Judge Gordon W. Shumaker of the state Appeals Court. The case is still scheduled to be heard Tuesday.
Clarification: In the sentence just above, “just-appointed” means that Shumaker had just been appointed on Friday to replace Klaphake on the special panel to hear the challenge to Gildea’s ballot status. Shumaker has been on the Appeals Court since 1998.
Eric Black writes about national and state politics, foreign affairs and other topics. He can be reached at eblack [at] minnpost [dot] com.