When the effective date of a judge's retirement suggests that use of the appointment process would thwart an otherwise possible election that would leave no significant gap in service, use of the election process under Article VI, Section 7 of the Minnesota Constitution to fill a judicial seat is required.
The opinion of the court was delivered by: Blatz, Chief Justice
Blatz, C.J. Dissenting, Anderson, Russell A., Stringer, JJ. Took no part, Meyer, J.
Heard, considered, and decided by the court en banc.
This is an original action under Minn. Stat. § 204B.44 (2000) in which the petitioner seeks relief from an alleged wrongful act by Secretary of State Mary Kiffmeyer, in her refusal to accept affidavits of candidacy for a judicial seat in the First Judicial District and her anticipated failure to place the seat on the ballot. Petitioner is an attorney residing in Scott County who had planned to run for the seat, which was scheduled for election in fall 2002. An expedited hearing was held and, so as not to impede the orderly administration of the election, we issued an order on July 3, 2002, granting the petition with this opinion to follow. In the order, we directed the secretary of state to accept affidavits of candidacy for the First Judicial District seat and to place the seat on the 2002 ballot.
Judge Eugene Atkins' judicial seat in the First Judicial District was subject to election in 2002 in the regular course. Thus, unless reelected, Judge Atkins' term of office would end on Monday, January 6, 2003. On June 20, 2002, Judge Atkins notified Governor Jesse Ventura that he intended to resign effective Thursday, January 2, 2003.*fn1 In response, on June 24, 2002, John Hultquist, the Governor's Judicial Appointments Coordinator, sent a letter to the secretary of state notifying her that the governor intended to appoint someone to replace Judge Atkins.
On June 27, 2002, petitioner filed the petition at issue herein under Minn. Stat. § 204B.44, asking this court to order the secretary of state to accept affidavits of candidacy and hold an election for Judge Atkins' seat. On July 1, 2002, the governor ordered and directed the retirement of Judge Atkins effective January 2, 2003, and directed that the order be filed with the secretary of state. The candidate filing period for judicial and other elected state offices ran from July 2, 2002 to July 16, 2002.
Petitioner, who intended to run for Judge Atkins' seat, alleges that because Judge Atkins intends to remain in office for essentially the full term of his office and notified the governor of this fact before the filing period opened, the seat should be filled by election rather than appointment. Section 204B.44, which authorizes the filing of a petition for correction of errors, omissions, or wrongful acts related to the electoral process, describes several specific errors and omissions that may be the subject of a petition, Minn. Stat. § 204B.44(a), (b), (c) (2000), but also includes a broad category: "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 individual charged with any duty concerning an election." Minn. Stat. § 204B.44(d) (2000). Thus, we address the question of whether the secretary of state's initial*fn2 failure to accept affidavits of candidacy for and place on the ballot for election Judge Atkins' seat in the First Judicial District constituted a "wrongful act, omission, or error" of the secretary of state. Id.*fn3
We begin our analysis with the Minnesota Constitution, and specifically Article VI, §§ 7-8, which provide:
Sec. 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.
Sec. 8. Vacancy. 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 until a successor is elected and qualified. The successor shall be elected for a six year term at the next ...