Minnesota Lawyer
Republican chairman Keith Downey was named in the complaint, among others. (File photo)
Michelle MacDonald may have drawn more attention with her press conference last week on the steps of the State Office Building, but she’s not the only one filing a complaint related to her bid to score a seat on the Minnesota Supreme Court.
In keeping with the adage about politics and strange bedfellows, Steve Timmer, an attorney and liberal activist with DFL ties, beat her to the punch by filing a formal complaint with the Campaign Finance and Public Disclosure Board, accusing the Republican Party of illegally attempting to force its endorsed candidate for the Supreme Court, Michelle MacDonald, to quit the race.
In the complaint, Timmer names the Republican Party, Chairman Keith Downey, state executive committee member Pat Anderson, attorney Patrick C. Burns, who served as Anderson’s campaign manager in her successful 2002 campaign for state auditor, and “perhaps additional members of the executive committee presently unknown to me.”
Timmer — a semi-retired attorney and regular contributor to the progressive website Left.Mn — characterized the efforts to get MacDonald to abandon her campaign as “a tale of attempted subversion of the democracy of a political convention.”
In an interview at his Edina home, Timmer said that he did not consult with any DFL officials before filing the complaint. Although he is opposed to MacDonald’s candidacy and, more broadly, to the Republican Party’s practice of endorsing judicial candidates, he said he felt compelled to act as a matter of principle.
“I consider myself an advocate of the political system, not Michelle MacDonald,” Timmer said. “I think we want an open and democratic process. The complaint speaks for itself in terms of my motivations. I would like to see her continue to remain the endorsed candidate, even though I don’t think she’s a good candidate.”
MacDonald, who garnered the GOP endorsement at the state convention in May, has been at odds with party leadership since reports surfaced that she is currently facing charges of drunken driving and resisting arrest.
In his complaint, Timmer alleges a violation of Minnesota Statute 10A.36, which prohibits the use of coercion or threats of economic reprisal against individuals over their political activities.
Timmer said he chose to file the complaint with the Campaign Finance and Public Disclosure Board because it has “broad investigative powers, including subpoena powers,” which provides an opportunity to dig into the facts.
Gary Goldsmith, the executive director of the board, said confidentiality rules prohibit him from making any comment about Timmer’s complaint, or even confirming its existence. Asked whether the board had ever enforced the coercion provision of the statute, Goldsmith said he was not aware of any such an instance.
Under its rules, the board has up to 60 days to determine whether there is enough evidence to open a formal investigation.
Regardless of the outcome of Timmer’s complaint, MacDonald will likely produce more unwelcome headlines for the GOP through Election Day.
On Wednesday afternoon, MacDonald filed a separate complaint in a different venue — the Office of Administrative Hearings — in which she accused top party officials of violating two provisions of the Minnesota Fair Campaign Practices Act.
MacDonald said the case will be reviewed first by a three judge panel which will determine whether there is sufficient evidence for a criminal prosecution.
“In 30 days, I can almost guarantee you there will be criminal charges and the county attorney will take over,” MacDonald said at a press conference in St. Paul, where she was joined by a throng of supporters.
Macdonald also launched broadsides at her fellow Republicans, the legal profession and the media, which, she asserted, needs to be “less lazy and more investigative.”
“I’m trying to shine light on the injustice of our system,” she said.
Standing beside MacDonald, Greg Wersal, the attorney and former Supreme Court candidate whose legal challenge opened the door to partisan endorsements in judicial races, said Republican opposition to MacDonald is rooted in factional dispute within the party.
“There is a group of dedicated people inside the party who keep trying to stop the endorsements and sink the endorsed candidates so they are never elected,” he said.
In her 85-page complaint, MacDonald names the Republican Party, Downey, Burns, Anderson and attorney Doug Seaton, the chair of the party’s judicial elections committee.
She also said she may press for an investigation into whether any of the named parties violated an anti-coercion law that is not related to the Fair Campaign Practices Act, Minnesota Statute 609.27. That law carries penalties of up to 10 years in prison and fines of up to $20,000.
In making their legal arguments, both Timmer and MacDonald relied largely on recorded phone conversations and texts between MacDonald and Burns that occurred in the wake of the executive committee’s decision to bar MacDonald from the party’s booth at the State Fair, a ban MacDonald openly defied.
In the exchanges, Burns urged MacDonald to “get out of the race” and instructed her to submit a letter to party chairman Downey formally repudiating her endorsement by noon on Aug. 23. He further warned that failure to meet that deadline would result in reprisals from the party.
“I have no idea what it is, but I’ve been warned: It’s not going to get any better from here out,” Burns said in one recording.
After MacDonald rejected the overture, Downey sent out an email to party officials, defending the decision to eject MacDonald from the fair booth. While Downey stated that MacDonald remains the endorsed candidate, he also attached a scathing memo from five Republican attorneys who declared MacDonald unfit for the bench and called on the executive committee to reconsider her endorsement.
Downey, who previously denied wrongdoing in connection with the case, could not be reached for comment on the latest development in the saga. Likewise, Seaton and Anderson have remained mum.
In an interview with Capitol Report last week, Burns insisted that he was not acting as an agent of the party and had not discussed the matter with Downey. He said he interceded because he has known MacDonald for a decade and wanted to help her work on a “graceful” exit from a campaign that he believes is harming both her professional reputation and the GOP’s prospects.
Michael Brodkorb, the former deputy chair of the Republican Party turned blogger and political analyst, called the controversy over MacDonald “unprecedented territory.”
“When you’re in politics for a long time, you think you’ve seen everything,” he said. “I’ve never seen anything like it. It’s created a sizeable family feud within the Republican Party and it could really spill out as the case goes forward.”
Brodkorb, who broke the story about the exchanges between Burns and MacDonald after the candidate provided him with her recordings, said he has spoken with several attorneys who think that both Burns and Downey ought to be worried about their legal exposure.
As a political matter, Brodkorb said Downey “fundamentally misplayed” the controversy. He pointed to an earlier memo that Downey sent to party officials in advance of the convention where MacDonald garnered her endorsement. In that memo, Downey stated that party officials should resign if they don’t support the party’s endorsed candidates.
Despite that edict, MacDonald’s candidacy has produced open dissension among Republicans. Following MacDonald’s ejection from the GOP booth at the State Fair, several Republican lawmakers chimed in on the Twitter meme, ThingsIWouldRatherDoThanStandWithMichelleMacDonald, and at least two candidates at the top of the GOP slate announced that they won’t vote for MacDonald.
As a practical matter, Brodkorb said, Downey ought to have let MacDonald appear at the booth, which would have been consistent with his prior directive and probably limited the public relations damage.
“[Downey] created this mess by sending out that email, saying support the endorsed candidate or else,” Brodkorb said. “The inconsistency here is on the party’s part.”
Ken Martin, the chairman of the DFL, said the MacDonald saga underscores the folly of partisan involvement in judicial races.
“I hope this is the final nail in the coffin of political parties endorsing in judicial elections,” he said.
Timmer complaint
Steve Timmer’s six-page complaint with the Campaign Finance and Public Disclosure Board alleges that the Republican Party and various officials have violated this Minnesota statute in their dealings with Michelle MacDonald:
10A.36 REPRISALS PROHIBITED; PENALTY.
An individual or association must not engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity. This subdivision does not apply to compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment. An individual or association that violates this section is guilty of a gross misdemeanor.
MacDonald complaint
Michelle MacDonald’s complaint, weighing in at 85 pages and filed with the Office of Administrative Hearings, is centered on this Minnesota statute, known as the Minnesota Fair Campaign Practices Act:
609.27 COERCION.
Subdivision 1. Acts constituting.
Whoever orally or in writing makes any of the following threats and thereby causes another against the other’s will to do any act or forbear doing a lawful act is guilty of coercion and may be sentenced as provided in subdivision 2:
(1) a threat to unlawfully inflict bodily harm upon, or hold in confinement, the person threatened or another, when robbery or attempt to rob is not committed thereby; or
(2) a threat to unlawfully inflict damage to the property of the person threatened or another; or
(3) a threat to unlawfully injure a trade, business, profession, or calling; or
(4) a threat to expose a secret or deformity, publish a defamatory statement, or otherwise to expose any person to disgrace or ridicule; or
(5) a threat to make or cause to be made a criminal charge, whether true or false; provided, that a warning of the consequences of a future violation of law given in good faith by a peace officer or prosecuting attorney to any person shall not be deemed a threat for the purposes of this section.
Subd. 2.Sentence.
Whoever violates subdivision 1 may be sentenced as follows:
(1) to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both if neither the pecuniary gain received by the violator nor the loss suffered by the person threatened or another as a result of the threat exceeds $300, or the benefits received or harm sustained are not susceptible of pecuniary measurement; or
(2) to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if such pecuniary gain or loss is more than $300 but less than $2,500; or
(3) to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if such pecuniary gain or loss is $2,500, or more.
