by Steve Timmer

Oct 15, 2017, 2:00 PM

Linert & Timmer v. MacDonald

Those of you with a good memory will recall a story here last fall about Supreme Court candidate Michelle MacDonald and her claim to have been endorsed by the “GOP’s Judicial Selection Committee 2016,” which was untrue. Then, LeftMN went inexplicably silent on the subject. Well until now, that is.

The reason that things went silent is that I persuaded myself in the story that a complaint needed to be brought against MacDonald for violating the Fair Campaign Practices Act, in particular, Minn. Stat. sec. 211B.02. A Republican activist, Barbara Linert, and I filed a complaint in the Office of Administrative Hearings asserting that MacDonald deliberately claimed an endorsement she didn’t have; I thought it was ethically desirable not to write about it here after that. But the case is over now, for reasons that I will explain shortly.

And oh, by the way, we won.

Although I should not have been surprised, I suppose, the case attracted some attention, at least from campaign law types. For a complete description of the facts that gave rise to the complaint, please go back and read the story from last fall. I think it turned out to be the most interesting campaign case of the cycle.

In summary, attorney Michelle MacDonald ran against incumbent Supreme Court Justice Natalie Hudson in 2016. She was endorsed by the Republican Party of Minnesota for a run against Justice David Lillehaug in 2014, but she didn’t receive the party endorsement in 2016. It was an obvious show of flagging enthusiasm by the RPM for the oddball MacDonald.

Perhaps recognizing this gaping hole in her story, MacDonald supplied information to the Star Tribune newspaper that she had received the endorsement of, as noted, the “GOP’s Judicial Selection Committee 2016.” There were some teeny problems with this.

First, there was no such committee of the RPM. MacDonald made up the name. Michelle MacDonald claimed the endorsement of a group that didn’t exist. She could as well have claimed the endorsement of the Tooth Fairy, although as an individual, the Tooth Fairy’s endorsement would have had to have been in writing.

She made up a good name, too. The imprimatur of the “GOP Judicial Selection Committee” sounds as though she was chosen as the belle of the ball, or the fairest in the land, doesn’t it? And if you inferred from her name choice that the imaginary committee was picking candidates for the whole party, well, that would be fine, right?

The constitution of the RPM operative at the time of the 2016 state convention did have a committee to screen (not endorse) judicial candidates; it was described in the constitution in lower case as the “judicial election committee.” The committee examined prospective judicial candidates and either recommended them or did not, for endorsement by the convention delegates. The committee did not have the power of endorsement: that’s the convention’s job.

MacDonald obviously knew this drill from having participated in it just two years before. The “judicial election committee” did recommend MacDonald to the whole convention – on a split vote – but the convention declined to make any judicial endorsements, which was the same thing as saying “We don’t endorse Michelle,” because she was the only candidate for the Supreme Court.

At the December hearing, MacDonald testified, “Judicial Selection Committee,” “judicial election committee,” what’s the difference?” It was just a slip of the tongue, pen, and keyboard! She had an affidavit from one of her fellow travelers, Tim Kinley, which she presented at the earlier probable cause hearing, saying that people in the party called it the “Judicial Selection Committee” all the time. He didn’t offer that testimony as a witness at the hearing, although he did testify by telephone about the convention.

I made a little more sinister inference: she did it on purpose. I am convinced it’s the right inference, too.

Speaking of the hearing, on the morning it began, Erick Kaardal breezed in and announced that he would be representing Michelle MacDonald. He hadn’t filed a notice of appearance, although he had an organized hearing notebook that made it clear he’d been on the case for a while.

I suppose he thought we’d be so flustered at being faced by the Great Erick Kaardal that Barbara and I would just wilt and go away. Well, it didn’t work.

On the 27^th of December, the OAH panel issued its decision finding that Michelle MacDonald had indeed violated Minn. Stat. sec. 211B.02 and fined her the charitable sum – I thought – of $500. A muted celebration ensued, muted because we knew MacDonald would appeal the decision.

And in the fullness of time, which means just before the deadline, Erick served a notice of the appeal.

It has been a score of years or more since I have handled an appellate case. Barbara and I were fortunate to secure the services of the Greene Espel firm to represent us in the appeal. Transcripts were prepared, briefs filed, the case was argued, and on September 11, 2017, the Minnesota Court of Appeals affirmed the findings and order of the Office of Administrative Hearings. The deadline to petition the Minnesota Supreme Court to review this decision has passed. So it’s over.

That was about an eight hundred word preamble to what this story really is: a thank you note.

Thanks to my friend Michael Brodkorb for his assistance in understanding Republican constitutions and conventions, as well as the operation of the RPM judicial election committee (which was abolished, by the way, as a result of the 2016 episode with MacDonald). Michael remains a premier source of information about politics and politicians, and about Michelle MacDonald, too. He’s without peer in Minnesota, really. I also thank him for introducing me to Barbara Linert.

My new friend Barbara, an active Republican, was as incensed as I was about MacDonald’s claim of the fictitious endorsement, and she readily signed on with me to file the complaint. She made valuable contributions to the effort and asked several questions at the hearing where I thought: Gee, I wished I had asked that. I think the political commetariat class was intrigued by the case partly because one complainant was a Republican and one was a DFLer.

I also want to thank Harry Niska. It would probably embarrass Harry if I called him a friend, so I won’t do that. At our request, Harry came to the hearing in December and testified about the 2016 RPM convention, which he attended, and the judicial election committee, of which he was a member. Harry was one of the dissenters who recommended against an endorsement for Michelle MacDonald. You can’t get a subpoena for these OAH hearing for love nor money, so Harry testified voluntarily.

Harry had been involved in a very similar case in the 2014 cycle; his insider’s knowledge was obviously valuable to the OAH panel.

Harry and I also share one serious peeve about these cases. Although Attorney General Lori Swanson is listed as a party to Court of Appeals proceedings in both cases, and from the opinions you would conclude that her office made an appearance; it didn’t. The constitutionality of Minn. Stat. sec. 211B.02 was raised by both Court of Appeals appellants (actually “relators,” but most of you probably aren’t familiar with the term) Bonn Clayton and Michelle MacDonald, but the attorney general did nothing to defend the constitutionality of the statute.

This may have figured in Harry’s decision to seek the Republican Party endorsement for Attorney General.

In case you weren’t counting, that’s three Republicans and me.

And last, but hardly least, I offer my thanks and sincere gratitude to my lawyers (and Barbara’s, too) at the Minneapolis firm of Greene Espel. Four terrific 1^st Amendment and appellate lawyers were on the team: John Baker, Kate Swenson, Karl Procaccini, and Chris Schmitter. Conferences to prepare the case were stimulating and reassuring. Karl argued the case before the Court of Appeals in July. The first words he spoke were: Does Michelle MacDonald have a constitutional right to claim an endorsement she doesn’t have?

The Court of Appeals wrote, Nope, she doesn’t.