Titles Of Nobility

The Minnesota Supreme Court dismissed without prejudice a petition relating to a future election to the court

On February 19, 2025, Stephen A. Emery filed a petition under Minn. Stat. § 204B.44 (2024), asserting that he “will be a candidate for the position of Justice of the Minnesota Supreme Court in 2026.” The petition alleges that “printing the word ‘incumbent’ after a judge’s name on a ballot,” as Minn. Stat. § 204B.36, subd. 5 (2024), requires, violates the Titles of Nobility Clauses of the United States Constitution, see U.S. Const. art. I, § 9, cl. 8; id., art. I, § 10, cl. 1, and gives the incumbent “candidate an unfair advantage” within the meaning of Minn. Stat. § 204B.35, subd. 2 (2024). The petition seeks relief regarding the 2026 primary and general elections.

Emery’s petition was filed well over a year before the candidate filing period opens in May 2026, see Minn. Stat. § 204B.09, subd. 1 (2024); the primary election in August 2026, see Minn. Stat. §§ 200.02, subd. 28, 204D.03, subd. 1, 204D.07, subd. 3 (2024); and the general election in November 2026, see Minn. Stat. § 204D.03, subd. 2 (2024). Respondent Steve Simon, in his official capacity as Minnesota Secretary of State, argued in response that the petition must be dismissed because it is not ripe, nor “about to occur” as is required by Minn. Stat. § 204B.44(a), relying upon this court’s recent opinion in Growe v. Simon, 2 N.W.3d 490 (Minn. 2024). We agree that the petition must be dismissed on these bases.

Ripeness

Growe compels the conclusion that Emery’s petition does not raise a justiciable controversy at this time. Emery has not alleged nor presented evidence that the incumbency issue he has identified is “nearly certain” to occur. Emery’s petition is expressly predicated on his claimed intention to “be a candidate for the position of Justice of the Minnesota Supreme Court in 2026.” But his claim is not ripe solely upon Emery’s assertion of his intent to run. His claim challenging the “incumbent” designation on the ballot only ripens if there is an incumbent justice running for the office Emery seeks. See Clark v. Pawlenty, 755 N.W.2d 293, 300 (Minn. 2008) (concluding that for a section 204B.44 petition challenging the “incumbent” designation for newly appointed Justice Gildea, “the claim could have been made as soon as Justice Gildea filed her affidavit of candidacy”). Here, the candidate filing period will not open until May 2026. Nor has Emery directed this court to any other evidence of an incumbent’s intention to run. See Kennedy v. Carlson, 544 N.W.2d 1, 2 (Minn. 1996) (holding that “[t]o establish a justiciable controversy, a plaintiff must show an actual or imminent injury; assertions of merely possible or hypothetical injuries will not give Minnesota courts jurisdiction over plaintiff’s claim” (emphasis added)).

Further, Emery’s section 204B.44 petition must be dismissed for the separate reason that his alleged error as to any 2026 ballot is not one “which ha[s] occurred or [is] about to occur.” Minn. Stat. § 204B.44(a). Although ripeness focuses upon whether the dispute is too hypothetical, the “about to occur” requirement under section 204B.44(a) injects an element of temporal proximity. Here, this separate requirement is not met. When this court issued its November 2023 order in Growe, the general election was one year away, and the court concluded that “[t]he placement of . . . President Trump’s name on the 2024 general election ballot is not ‘about to occur.’ ” Growe, 2 N.W.3d at 502. The petition here likewise fails to raise an error that is “about to occur” as section 204B.44(a) requires.

(Mike Frisch)