Michelle MacDonald v. Steve Simon, Minnesota Secretary of State

STATE OF MINNESOTA

IN SUPREME COURT

A24-1022

Original Jurisdiction Connolly, Acting C.J.

Michelle MacDonald,

Petitioner,

vs. Filed: October 16, 2024
Office of Appellate Courts
Steve Simon, Minnesota Secretary of State,

Respondent.

________________________

Eric Bond Anunobi, Eric Bond Law Office, PLLC, West Saint Paul, Minnesota, for
petitioner.

Keith Ellison, Attorney General, Peter J. Farrell, Deputy Solicitor General, Nathan J.
Hartshorn, Frank E. Langan, Assistant Attorneys General, Saint Paul, Minnesota, for
respondent.
________________________

SYLLABUS

The Secretary of State does not err in refusing to place on the ballot for judicial office

a person whose law license in Minnesota is currently suspended, because an attorney whose

license is suspended is not “learned in the law,” as Article VI, Section 5 of the Minnesota

Constitution requires for judges of the supreme court, the court of appeals, and the district

court.

Petition denied.

1
 Heard, considered, and decided by FRANCIS J. CONNOLLY, Acting Chief

Justice; LESLIE E. BEIERS, JOHN H. GUTHMANN, TIMOTHY J. MCMANUS, and

LAURIE J. MILLER, Acting Associate Justices. 1

OPINION

CONNOLLY, Acting Chief Justice.

Michelle MacDonald—whose law license in Minnesota is currently suspended—

filed a petition under Minn. Stat. § 204B.44 (2022), asking this court to: (1) declare that she

is “learned in the law” and therefore qualified to be a judge of the supreme court pursuant to

Minn. Const. art. VI, § 5; (2) determine that Minn. Stat. § 204B.06, subd. 8 (2022), which

requires a judicial candidate to “submit with the affidavit of candidacy proof that the

candidate is licensed to practice law in this state” and which defines proof as “providing a

copy of a current attorney license,” is unconstitutional on its face and as applied; and

(3) direct respondent Steve Simon, Minnesota Secretary of State, to allow MacDonald “to

appear on the ballot for the 2024 state general election for Associate Justice, Supreme

Court 5 opposing Anne McKeig.”

Following briefing and oral argument, we issued an order on August 28, 2024,

denying the petition. This opinion explains the reasons for our decision. Because

MacDonald’s law license in Minnesota is currently suspended, she is not “learned in the law”

as Article VI, Section 5 of the Minnesota Constitution requires for judges of the supreme

court, and thus is not constitutionally qualified to be a judge of the supreme court. As a

1
Appointed pursuant to Minn. Const. art. VI, § 2, and Minn. Stat. § 2.724, subd. 2
(2022).

2
result, the Secretary of State did not err by excluding MacDonald from the 2024 general

election ballot as a candidate for supreme court justice.

FACTS 2

MacDonald, a Minnesota resident and registered voter, sought to appear on

Minnesota’s 2024 general election ballot for Associate Justice – Supreme Court 5. 3 During

the candidate filing period for the 2024 election, MacDonald went to the Office of the

Minnesota Secretary of State and attempted to file an affidavit of candidacy. Although she

stated in her affidavit of candidacy that “I am learned in the law,” the printout from the

Lawyer Registration Office website she included with her filing indicated that she is “Not

Authorized” to practice law and that her current disciplinary status is “SUSPENDED.”

The Secretary of State’s office rejected MacDonald’s affidavit of candidacy.

MacDonald has been an attorney at law since 1986 and practiced law in Minnesota

from 1986 to 2021. But her law license in Minnesota was suspended in June 2021. In re

MacDonald, 962 N.W.2d 451, 466, 470 (Minn. 2021) (per curiam) (indefinitely

suspending MacDonald with no right to petition for reinstatement for four months for

2
The facts are based on what was alleged in MacDonald’s petition under Minn. Stat.
§ 204B.44. No evidentiary hearing was held; respondent represented that he “does not
believe that the material facts of this matter are in dispute.”
3
The only candidate on the 2024 general election ballot for this office is Associate
Justice Anne McKeig. To avoid any possible appearance of bias, all members of the court
recused, and this case was instead considered and decided by a panel of five acting
members, who are “court of appeals and district court judges, all of whom, based upon
their term of office and by operation of the mandatory judicial retirement law, Minn. Stat.
§§ 490.121, subd. 21d, and 490.125, subd. 1 (2022), will never stand again for judicial
election in the State of Minnesota.” MacDonald v. Simon, No. A24-1022, Order at 2
(Minn. filed July 15, 2024).

3
making knowingly false statements about the integrity of a judge and failing to obtain a

client’s written consent to a fee-splitting arrangement). MacDonald remains suspended, 4

and currently she is not authorized to practice law in Minnesota.

MacDonald filed a petition with this court under Minn. Stat. § 204B.44, seeking to

correct alleged errors and omissions by having her name placed on the ballot as a judicial

candidate. 5 The petition recognized that Article VI, Section 5 of the Minnesota

Constitution requires that “[j]udges of the supreme court, the court of appeals, and the

district court shall be learned in the law.” But MacDonald maintained that being “learned

in the law” does not require that the candidate for judicial office be licensed to practice law

in Minnesota. MacDonald further claimed that, subject only to the constitutional limitation

in Article VI, Section 5, the Minnesota Constitution otherwise recognizes a fundamental

right to candidacy for those who, like her, are eligible to vote, are at least 21 years of age,

and satisfy a residency requirement. See Minn. Const. art. VII, § 6. Finally, MacDonald

alleged that Minn. Stat. § 204B.06, subd. 8, which requires proof of eligibility that a

judicial candidate is “licensed to practice law in this state”—meaning “a current attorney

license”—is unconstitutional both as written and as applied to her.

4
In December 2021, MacDonald filed a petition for reinstatement to the practice of
law, which this court denied. In re MacDonald, 994 N.W.2d 547, 549 (Minn. 2023) (per
curiam).
5
The petition also named as a petitioner Eric Anunobi, an attorney with an active law
license who sought to appear on the ballot for a district court judgeship. After the petition
was filed, Anunobi and respondent Steve Simon, Minnesota Secretary of State, filed a
stipulation for voluntary dismissal, with prejudice, as to all of Anunobi’s claims in the
petition. Shortly thereafter, Anunobi filed a notice and appeared as MacDonald’s attorney
in this case.

4
 The petition thus sought a declaration that MacDonald is learned in the law and

qualifies to be a judge of the supreme court under Article VI, Section 5 of the Minnesota

Constitution; a declaration that Minn. Stat. § 204B.06, subd. 8, is unconstitutional as

written and as applied; and an order directing the Secretary of State to have MacDonald

appear on the ballot for Associate Justice, Supreme Court 5. 6

Following briefing and oral argument, we issued an order on August 28, 2024,

denying the petition, with this opinion to follow.

ANALYSIS

A.

MacDonald brought her petition under Minn. Stat. § 204B.44. In the case of an

election for state office, a person may file—directly with the supreme court—a petition to

correct certain “errors, omissions, or wrongful acts which have occurred or are about to

occur.” Minn. Stat. § 204B.44(a). Included among those defects is “an error or omission

in the placement or printing of the name . . . of any candidate . . . on any official ballot.”

Minn. Stat. § 204B.44(a)(1). The petitioner has the burden to prove by a preponderance of

the evidence that an error, omission, or wrongful act of an election official must be

corrected. Weiler v. Ritchie, 788 N.W.2d 879, 882–83 (Minn. 2010) (per curiam).

6
Justice Anne McKeig, as the only candidate for this office, was invited to participate
but did not appear or otherwise participate in this case.

5
 B.

MacDonald’s petition is rooted in the argument that under Article VII, Section 6 of

the Minnesota Constitution (Eligibility Clause), which governs general eligibility to hold

office, every person who meets the requirements in that section to hold office is eligible to

do so, subject only to other constitutional requirements. 7 In other words, she contends that

the Legislature cannot impose any greater restrictions or requirements on who may hold

office and appear on the ballot. MacDonald takes issue with Minn. Stat. § 204B.06,

subd. 8, which states that “[a] candidate for judicial office . . . shall submit with the affidavit

of candidacy proof that the candidate is licensed to practice law in this state,” and that

“[p]roof means providing a copy of a current attorney license.” She argues this provision

violates the Eligibility Clause by imposing additional requirements that are not found

within the Minnesota Constitution.

MacDonald concedes, however, that—consistent with the Eligibility Clause—“the

additional constitutional qualifications for the office of Judge set forth in Article VI

Judiciary, Section 5, Qualifications, are applicable” to her. That constitutional provision

requires the following:

7
Article VII, Section 6 of the Minnesota Constitution provides:

Every person who by the provisions of this article is entitled to vote at any
election and is 21 years of age is eligible for any office elective by the people
in the district wherein he has resided 30 days previous to the election, except
as otherwise provided in this constitution, or the constitution and law of the
United States.

Minn. Const. art. VII, § 6.

6
 Judges of the supreme court, the court of appeals and the district court shall
be learned in the law. The qualifications of all other judges and judicial
officers shall be prescribed by law. The compensation of all judges shall be
prescribed by the legislature and shall not be diminished during their term of
office.

Minn. Const. art. VI, § 5 (emphasis added). 8

Accordingly, there is a threshold issue before us: whether MacDonald is “learned in

the law” and thus qualified to be a judge of the supreme court under Article VI, Section 5

of the Minnesota Constitution. If MacDonald cannot satisfy what she herself concedes to

be the constitutional requirement for eligibility to be a judge of the supreme court, there is

no need to reach her argument that the requirements in Minn. Stat. § 204B.06, subd. 8,

unconstitutionally impose greater requirements than those within the Minnesota

Constitution. And MacDonald concedes that at present, “[h]er Minnesota law license is

suspended.” Thus, the threshold—and here dispositive—question is whether an attorney

whose Minnesota law license is suspended is “learned in the law” as that term is used in

the Minnesota Constitution.

8
This constitutional requirement that judges of the supreme court be “learned in the
law” is mirrored in Minn. Stat. § 204B.06, subd. 4a(2) (2022), which provides:

Candidates who seek nomination for the following offices shall state the
following additional information on the affidavit:
....
(2) for supreme court justice, court of appeals judge, or district court judge,
that the candidate is learned in the law and will not turn 70 years of age
before the first Monday in January of the following year . . . .

Minn. Stat. § 204B.06, subd. 4a(2) (2022) (emphasis added.)

7
 C.

1.

MacDonald argues that the phrase “learned in the law,” as used in Article VI,

Section 5 of the Minnesota Constitution, means being an attorney at law. As support, she

cites State ex rel. Boedigheimer v. Welter, 293 N.W. 914 (Minn. 1940). MacDonald’s

reliance on Boedigheimer is misplaced.

Boedigheimer is distinct from this case because it concerned the eligibility

requirements to be a “municipal judge.” Boedigheimer, 293 N.W. at 914 (emphasis added).

The relevant statute creating the municipal court that was at issue in Boedigheimer included

the requirement that “[t]he Judge of the Municipal Court shall be . . . a person learned in

the law and duly admitted to practice as an attorney in this State.” Id. (quoting Minn. Gen.

Stat. ch. 5, § 3 (1923)). The “only question” presented in Boedigheimer was the

constitutionality of this requirement in the statute. Id.

Boedigheimer began its analysis by recognizing, as MacDonald now highlights, that

this court had construed the phrase “learned in the law” as “mean[ing] ‘attorneys at law.’ ”

Id. (citing State ex rel. Jack v. Schmahl, 147 N.W. 425, 426 (Minn. 1914) (per curiam)).

This court also drew attention to the two related constitutional provisions at issue here, that

“[t]he judges of the supreme and district courts shall be men learned in the law,” as well

as the general Eligibility Clause. 9 293 N.W. at 914–15 (emphasis added) (citation omitted)

9
Importantly, at the time Boedigheimer was decided, the Minnesota Constitution did
not contain the provision in the current constitution that “[t]he qualifications of all other
judges and judicial officers shall be prescribed by law.” Minn. Const. art. VI, § 5.

8
(internal quotation marks omitted). This court then looked to its prior decision in State ex

rel. Froehlich v. Ries, 209 N.W. 327 (Minn. 1926), as “dispos[ing] of the question

involved” and “controlling.” Boedigheimer, 293 N.W. at 915. In Froehlich, this court held

that a statute requiring that court commissioners be “learned in the law” was

unconstitutional. 209 N.W. at 328. This court in Boedigheimer observed that even though

court commissioners could “exercise the judicial powers of a judge of the district court,”

the Legislature “cannot impose greater restrictions or exact other qualifications for

eligibility to constitutional offices than are prescribed in the Constitution.” 293 N.W. at

915. Thus, Boedigheimer affirmed that “[w]hile it is important that judges of all courts of

record be persons ‘learned in the law,’ we are nevertheless without power to increase the

qualifications prescribed by the Constitution.” Id.

Despite holding that it was unconstitutional for the Legislature to require a

municipal judge to have a Minnesota law license, Boedigheimer did not determine, as

MacDonald argues, what the phrase “learned in the law,” as used in the Minnesota

Constitution, means. Boedigheimer only ruled that the constitutional requirement to be

“learned in the law” did not apply to municipal judges.

Nor does Boedigheimer answer the question as to whether “learned in the law”

meant something distinct from the statutory requirement of being “duly admitted to

practice as an attorney in the State.” Boedigheimer held that this entire requirement

contained within the statute at issue for municipal judges was unconstitutional. And while

Boedigheimer explained that the court had previously construed persons “learned in the

law” to mean “attorneys at law,” Boedigheimer did not answer whether either phrase meant

9
only attorneys licensed to practice law in the State of Minnesota. The case Boedigheimer

relied upon in this regard was Schmahl, which only had to determine whether “a layman”

was “learned in the law.” Schmahl, 147 N.W. at 426. In Schmahl, that the phrase “learned

in the law” was used “in the sense of attorneys at law” was so “[b]eyond question” and

dispositive of the issue in that case that the “[t]he matter d[id] not merit further discussion.”

Id. In other words, neither in Schmahl nor in Boedigheimer was there any need for this

court to address whether being “learned in the law” meant being an actively licensed

attorney at law in the State of Minnesota.

2.

The question of what is meant by the requirement in the Minnesota Constitution that

a judge be “learned in the law” is instead controlled by In re Daly, 200 N.W.2d 913 (Minn.

1972) (per curiam). 10 In Daly, four individuals filed the equivalent of a section 204B.44

petition seeking to have their names appear on the ballot as candidates for the supreme

court or district court. Id. at 914. Three of the individuals were “admitted to practice law

in this state” and later “disbarred.” Id. The fourth, Charles Thibodeau, had “never been

admitted to practice law in this state.” Id. At issue was the four individuals’ eligibility to

hold the judicial office being sought. See id. at 914–15.

This court recognized that in Schmahl—and then followed by Froehlich and

Boedigheimer—the constitutional requirement that judges be “learned in the law” required

10
Tellingly, while the Secretary of State appropriately recognized Daly as “the leading
case,” MacDonald, for her part, never cited to or addressed Daly in her petition, brief, or
any other filings.

10
that they be attorneys at law. Daly, 200 N.W.2d at 916. Daly acknowledged that this

definition was “controlling as to Charles Thibodeau,” who had never been admitted to

practice in the state. Id. But contrary to MacDonald’s argument that the definition of

“learned in the law” in those cases is both the starting and ending place for the analysis of

whether she is “learned in the law,” Daly recognized that further analysis was required for

someone who has been admitted to practice law and then subject to attorney discipline.

Daly first credited the constitutional convention debates where it was voiced that

“the legal construction of the term” “learned in the law” required that the person “has been

admitted to the bar.” Id. at 917 (citation omitted). Daly then turned to the heart of the

question in that case: “whether a person once admitted to practice law and later disbarred

is ‘learned in the law.’ ” Id. at 918. This court answered this question in the negative after

canvassing other authorities. It concluded:

It thus seems clear that a disbarred attorney is no more qualified to hold the
office of justice of the supreme court or judge of the district court than any
other lay person. By his disbarment he is reduced to the status of a layman.
The term “learned in the law,” which prescribes the qualifications for these
judicial positions, clearly prevents a layman from filing for or holding the
office; and it must therefore follow that a disbarred attorney is in no better
position to file for the office, or to hold it if he is elected, than any other
layman.

Id. at 920.

Significantly, the authorities relied upon in reaching this holding applied the same

rule to suspended attorneys as to disbarred attorneys. Daly quoted favorably to the

American Jurisprudence treatise for the principle that “[a] disbarred attorney can appear in

court only under circumstances entitling a layman to appear,” and which also highlighted

11
that “[a] like rule applies, during the period of suspension, to one who has been suspended.”

Daly, 200 N.W.2d at 919 (quoting 7 Am. Jur. 2d, Attorneys at Law § 19). Daly likewise

quoted a Wisconsin opinion for the principle that “[w]hen a member of the Bar is

suspended or disbarred it is from the practice of law, not only from appearing in court.”

Id. (emphasis added) (quoting In re Integration of the Bar, 93 N.W.2d 601, 605 (Wis. 1958)

(per curiam)). And Daly followed the reasoning of the Washington Supreme Court, which

rejected the contention “that a person who had been admitted to practice was eligible to

hold the judicial office even though he had been suspended.” Id. at 919–20 (summarizing

State ex rel. Willis v. Monfort, 159 P. 889, 890 (Wash. 1916)).

Given this court’s reliance in Daly upon authorities treating both suspended and

disbarred attorneys as effectively being laypersons, and the distinction drawn in Daly that

those who are laypersons are not “learned in the law,” Daly is both on point and controlling.

Just like a disbarred lawyer, a suspended lawyer is not authorized to practice law in

Minnesota. In re Mollin, 940 N.W.2d 470, 473 (Minn. 2020) (per curiam) (“A lawyer

cannot practice law when he is not authorized to do so (for instance, if he is suspended).”).

Furthermore, subsequent decisions by this court have characterized the holding of

Daly in a manner precluding suspended attorneys from being eligible to serve as judges. 11

In Sylvestre v. State—a case concerning judicial retirements—the constitutional

11
This court also reaffirmed that Daly “was clearly right as a matter of law and fact”
in Peterson v. Knutson, 233 N.W.2d 716, 720–21 (Minn. 1975). The posture of that case
was unique—one of the parties in Daly brought an action against those members of the
court who had heard and decided Daly. Peterson, 233 N.W.2d at 717. But Peterson
squarely reaffirmed Daly, with reliance again upon other jurisdictions that reached the
same result as to suspended attorneys. Peterson, 233 N.W.2d at 722.

12
requirement that judges be “learned in the law” was referenced, and citing Daly, it was

explained that the “term means that in order to hold a judicial position a person must be

admitted to practice law and in good standing.” 214 N.W.2d 658, 663 (Minn. 1973)

(emphasis added). Similarly, in In re Scarrella, this court—in again holding that

individuals not admitted or entitled to practice law in the State must be omitted from the

ballots for judicial office—further advised that “[a]mendment of the form of affidavit to be

subscribed by persons seeking judicial office, specifying that to be ‘learned in the law’ is

to be admitted to practice in the courts of the State of Minnesota as a lawyer, should make

resort to the courts in cases so clearly controlled by precedent as this one unnecessary.”

221 N.W.2d 562, 563 (Minn. 1974) (per curiam) (emphasis added).

We find Daly and its progeny controlling as to the question here. Those cases dictate

that to be qualified under Article VI, Section 5 of the Minnesota Constitution to serve as a

judge of the supreme court, court of appeals, or district court, a person must be admitted to

practice law and not be suspended or disbarred. Because MacDonald is currently

suspended from practicing law in Minnesota, she is constitutionally ineligible to serve as a

supreme court justice. Accordingly, there was no error or omission by the Secretary of

State in excluding MacDonald from that ballot, and her petition fails.

CONCLUSION

For the foregoing reasons, we deny the petition.

Petition denied.

13