All eyes are on the U.S. Supreme Court following the death last week of Justice Ruth Bader Ginsburg, with tension over who will replace her and how that will play into the race for the presidency.
A sitting Minnesota Supreme Court justice hasn’t lost a judicial election since the 1940s, a history that would suggest Thissen would have very little to worry about in the upcoming contest. But Thissen is waging an unusually active campaign for an incumbent. His campaign committee has raised more than $128,000 this year, and has taken out digital, radio and billboard ads in the pursuit of retaining the seat.
The incumbent
Thissen is an attorney who long represented Minneapolis as a DFLer in the Minnesota House of Representatives. First elected in 2002, he eventually became Speaker of the House, serving in that role from 2013 to 2015. He made an unsuccessful bid for governor in 2010, dropping out before the primary, and announced a run for governor in 2018 before withdrawing in February of that year. Two months later, he was appointed to the Supreme Court by Gov. Mark Dayton.
Thissen told MinnPost he is now seeking re-election to the court because he enjoys the job. “The things we look at are things I care about: protecting individual rights, holding the powerful, holding government accountable, making sure we have a system of laws that preserves our democracy,” he said.
He said he sees access to justice, institutional racism and gender inequities as issues that still exist in the court system and as ones that need work. As part of his campaign, Thissen has produced a series of ads on Facebook that discuss how Minnesota Supreme Court cases have affected groups of Minnesotans, such as students, and promote access to lawyers for tenants and Minnesotans sued by debt collectors.
He characterized the Minnesota Supreme Court as a non-ideological one, pointing out that despite having appointees from both DFL and Republican governors, it comes to unanimous decisions about 80 percent of the time. (For more information, you can read Thissen’s Minnesota State Bar Association questionnaire.)
The challenger
MacDonald has been a lawyer since 1987, and her private practice focuses on family law. She has also worked as a Hennepin County small claims court judge and a civil and family court referee/arbitrator.
MacDonald first ran for the Minnesota Supreme Court in 2014 against Justice David Lillehaug, winning 47 percent of the votes to Lillehaug’s 53 percent. In 2016, she challenged Justice Natalie Hudson, winning 41 percent of the vote to Hudson’s 59 percent. In 2018, she ran against Justice Margaret Chutich, winning 44 percent of the vote to Chutich’s 56 percent.
In 2018, the Minnesota Supreme Court suspended MacDonald’s license for 60 days and put her on supervised probation for two years based on a referee’s recommendation, stemming from her representation of Grazzini-Rucki, including making unsubstantiated claims about a judge’s integrity and impartiality. (The referee also recommended a mental health evaluation, which the court declined to impose.)
In March, the Office of Lawyers Professional Responsibility, which oversees attorney licensing in Minnesota, filed a petition seeking sanctions against MacDonald based on allegations including repeating prior misconduct in making “knowingly false” comments about a judge, and filing what it called a “factually frivolous” defamation lawsuit against Michael Brodkorb, a former political operative who writes about the Grazzini-Rucki case, and his co-author. Earlier this month, MacDonald appeared in a hearing on the matter in front of a Supreme Court referee, who has until Oct. 20 to make a recommendation to the court, according to Minnesota Lawyer.
MacDonald told MinnPost her conduct, including filing a lawsuit against a judge, was in pursuit of civil rights for families. “Basically, my premise was to one degree or another, judges and courts are depriving us of our liberties with our children and our property,” she said.
MacDonald described herself as an originalist — someone who believes in interpreting the Constitution as it was written.
“The Constitution didn’t get invented to give us rights — oh let’s look at the Constitution, see what rights we have,” she said. “The Constitution actually was created to preserve our rights that we already have, fundamentally by being born on this earth.”
But she said she’s running because she wants to see reform of the judicial system. “We need to implement some restorative justice circles in the system, make it a more restorative system rather than a retributive system,” she said. (For more information, you can read MacDonald’s Minnesota State Bar questionnaire.)
Low-information races
When there’s a vacancy on the Minnesota Supreme Court during the elected term, either because of a death, retirement, resignation or because a judge has turned 70, the mandatory retirement age, the governor appoints a judge to fill the post. Minnesota governors have a longstanding tradition of appointing judges who have been approved by the state’s Commission on Judicial Selection, a panel of both attorneys and non-attorneys throughout the state who vet candidates for judicial openings.
In Minnesota, judges face statewide re-election after appointment by the governor, then face election every six years after that, presenting the opportunity for challengers to run.
Despite the fact that judges face election in Minnesota, campaigning to be a judge in Minnesota is not like campaigning for other elected offices in the state. One of the reasons is because the races aren’t partisan, so voters can’t rely on party affiliation to make decisions about the candidates (the only label on the ballot says “incumbent” next to the candidate running to keep his or her seat).
Another reason is the nature of the job: The state’s judicial code of conduct outlines the line judges are expected to walk between campaigning and taking positions on issues: “Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official,” the code reads. “Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure.”
Among other campaign restrictions, judges are prohibited from explicitly requesting donations from audiences of fewer than 20 people — something Steven Aggergaard, an attorney and visiting professor at Mitchell Hamline School of Law, said makes campaigning for the office fundamentally different from campaigning for other elected offices.
“It’s the appearance of impropriety that really is the justification for these canons,” he said. For example, a direct solicitation of a campaign contribution by a judicial candidate to someone with a matter before the court or a matter that eventually comes before the court could be seen as a conflict of interest. Judges often talk about the institution of courts and their judicial philosophy in campaigns, but are discouraged from taking positions on issues that could come up in court.
The campaigns
Despite those restrictions, candidates can — and do — wage active campaigns for seats on the bench. And despite 80 years of history that suggests an incumbent advantage, Thissen’s campaign is going all out.
That’s double what Justice Margaret Chutich’s committee had raised at that point in her re-election bid against MacDonald in 2018, and more than three times what Justice Natalie Hudson raised in 2016 when she faced MacDonald.
Thissen’s committee isn’t just raising money, it’s spending it: $153,000 in total campaign expenditures, including $63,000 on a digital marketing firm, $18,000 on billboards, $17,000 on radio ads, $25,000 on fundraising staff and $7,500 on a campaign manager.
MacDonald’s committee, meanwhile, started the year with $3,900 in the bank, according to campaign finance records, and raised an additional $610 since. Her campaign has spent $1,171 on campaign expenditures, including $700 on masks, $328 on printed campaign materials and $143 on “website issues.”
Thissen told MinnPost he’s campaigning hard because he thinks judges can do a better job of being transparent about the work courts do, and said he sees his campaign as a way to do that.
But also said he’s also taking the challenge from MacDonald seriously. After running multiple times, she has some name recognition and has captured significant shares of the vote in previous elections, he said. “We have a serious opponent … this is her fourth run for the office.”
