Michelle MacDonald (Photo: Kevin Featherly)
Arguments for judicial candidate’s free-speech rights fail to sway MN Supreme Court
Michelle MacDonald can have her own opinions, but not have her own facts. Nor can she conflate the two, even as a candidate for judicial office.
That’s the message from the Minnesota Supreme Court’s disciplinary opinion issued Wednesday. For at least four months, justices ruled, the lawyer who has spent the better part of a decade campaigning to join their court won’t be allowed to practice law.
MacDonald’s indefinite suspension will last at least as twice as long as the one she served in 2018 for a similar violation. It goes into effect 14 days from the date of Wednesday’s order.
She can petition for reinstatement after four months, the court ruled, but must pass an ethics exam. And she must pay $900 in costs to the prevailing party, the Office of Lawyers Professional Responsibility.
MacDonald committed two violations of lawyers’ rules of professional conduct, the court found. It found one to be relatively minor. That involved MacDonald’s failure to clearly inform a prospective personal-injury client of her fee-splitting arrangement with another attorney. That’s a violation of Minn. R. Prof. Conduct 1.5(e)(2).
The other infraction was serious, the court found—more so because it was a repeat violation.
Siding with the court’s appointed referee, E. Anne McKinsey, the court found that MacDonald’s statements during a 2018 radio interview impugned the integrity of Dakota County Judge David L. Knutson. The remarks also were judged to be “knowingly” and “demonstrably” false.
The referee found that MacDonald’s on-air statements “foster disrespect” for the judicial system. She also concluded that OLPR counsel proved that MacDonald’s statements attacking the judge’s and judicial system’s integrity violated Minn. R. Prof. Conduct 8.2(a) and 8.4(d).
Further, the radio interview represented repeat misconduct—MacDonald’s earlier suspension also dealt, in part, with impugning statements about Knutson.
The court agreed with all those findings, concluding that MacDonald’s misconduct warrants discipline.
McKinsey had recommended one year’s probation for MacDonald, with no suspension. The OLPR asked for 90 days’ suspension and a requirement that MacDonald petition for reinstatement.
The court went farther than either, suspending MacDonald for at least four months—roughly 120 days. Because of her “repeated attorney misconduct,” the court found indefinite suspension appropriate.
MacDonald was accused of two violations. Both occurred while she was already serving two years’ probation, following a previous 60-day suspension handed down in January 2018.
The original OLPR complaint included a third allegation by writer Michael Brodkorb, accusing MacDonald of filing a nuisance defamation lawsuit. The referee found that OLPR did not meet its burden of proof there and the Supreme Court did not consider the issue.
The court’s order rejects MacDonald’s laches defense. She failed to show how the timing of the OLPR director’s complaint—it was filed just as MacDonald’s two-year probation was ending—was prejudicial, the court found.
Nor did justices agree with MacDonald that her false statements against Knutson were protected by the First Amendment.
The remarks were made as MacDonald spoke on-air to WCCO Radio’s Blois Olson on Oct. 3, 2018. He was interviewing her about her state Supreme Court candidacy. MacDonald said she was speaking out because “courts need reform,” are “damaging people and families,” and are violating Minnesota citizens’ civil rights.
Olson asked if she was referring to former client Sandra Grazzini-Rucki’s case. MacDonald said she was. At one point during that 2012 family-law dispute, Judge Knutson ordered Grazzini-Rucki and her former husband to have no contact with their children.
During the WCCO interview, MacDonald accused Knutson of issuing that order “without any hearing, without any process.” That statement was false, the court found.
As MacDonald acknowledged to the referee, the order was issued after a telephone conference in which Grazzini-Rucki was represented by another lawyer. In fact, the court found, Grazzini-Rucki’s lawyer drafted the order, a fact that led the court to observe that some of MacDonald’s arguments “bordered on the absurd.”
MacDonald knew what the facts were no later than 2013, the per curiam order says. That’s when she filed a motion challenging the no-contact order, inaccurately arguing it had resulted from ex parte communication between the judge and just one parent. The District Court judge denied that motion, explaining the order was actually issued by mutual consent.
If MacDonald forgot that, her memory would have been refreshed during the proceedings that led to her 2018 suspension, the court notes.
At the disciplinary hearing before McKinsey last year, MacDonald said she knew both parents were on the line that day, but she did not consider a telephone conference to be a “hearing.” And when she said, “without any process,” she explained, she really meant to say, “without any due process.”
The court was unpersuaded:
“Without a doubt, MacDonald is free to speak her opinion about what due process should entail. But her comment was not an opinion; it was a statement of fact. MacDonald asserted that a particular order in a particular case was issued without any hearing or any due process. That claim is specific and verifiable.” [Emphasis in original.]
But anyone listening to that interview wouldn’t know MacDonald was merely opining, the court order says:
“In fact, a reasonable listener would assume the opposite, namely, that those events did not take place. Consequently, even if MacDonald’s statement were merely an opinion, it would not be protected.”
MacDonald also told WCCO that Knutson committed a “crime” in issuing his order. That, too, is false, the court found, as was MacDonald’s contention that the Grazzini-Rucki case was an example of “civil rights … being violated all over the state.”
Rights of a candidate
In mounting her First Amendment defense, the order says, MacDonald relied on 2002’s U.S. Supreme Court ruling in Republican Party of Minnesota v. White. MacDonald claimed that, because she was a judicial candidate commenting on legal issues, her statements should merit greater constitutional protection.
“Her reliance is misplaced,” the court’s order says.
White struck down a Minnesota Code of Judicial Conduct rule, which broadly prohibited judicial candidates from expressing opinions on legal or political issues, the court writes:
“But White did not hold that a candidate may knowingly or recklessly make false statements of fact about the integrity of judicial officers without consequence, which is the issue here.”
Neither did White conclude that judicial candidates receive greater constitutional protection than other lawyers. MacDonald was obligated to follow the rules of professional conduct as a candidate, the court found, and her knowingly false on-air statements about the judge were not protected under White.
MacDonald is wrong, as well, in holding that the referee erred by failing to apply strict scrutiny in determining if her on-air statements violated lawyers’ professional conduct rules.
McKinsey, relying on 1990’s In re Graham state Supreme Court ruling, applied an objective standard to determine whether MacDonald acted with knowing or reckless disregard for the truth. The Graham test is simply whether a reasonable lawyer in the same circumstances would have made such statements.
But MacDonald argued that the referee should have taken into consideration MacDonald’s belief in what she was saying. To show defamation of a public figure, she argued, a finding of “actual malice,” as outlined in 1964’s landmark New York Times Co. v. Sullivan, is needed.
That argument is “without merit,” the order says. In Graham, the Supreme Court expressly declined to follow the Times v. Sullivan standard for attorney discipline cases.
“As we explained in MacDonald’s 2018 disciplinary proceedings,” the court writes, “Graham adopted a ‘modified version’ of the constitutional standard with respect to attorney discipline.” Nothing has changed since 2018, the court writes.
Before issuing its order, the court noted that neither MacDonald’s previous 60-day suspension nor her probation went far enough in preventing her from additional misconduct. It added:
“We are especially troubled by the repeated nature of MacDonald’s misconduct after discipline, MacDonald’s knowledge of the factual falsity of her statements, her refusal to acknowledge the wrongfulness of her conduct, and her lack of remorse.”
With that, the court issued its four-month-minimum suspension. Justices Margaret Chutich and Paul Thissen took no part in the case.
To David Schultz, the law and political science instructor, the case seems significant more for the way it corrals judicial candidates’ First Amendment expectations than for the “slap on the wrist” he says the court delivered Wednesday.
U.S. Supreme Court and the 8th Circuit case law generally frees political candidates to make freewheeling political statements, Schultz said. The only recent curbs in that area from the U.S. Supreme Court, he said, have dealt with judicial candidates.
In 2015’s Williams-Yulee v. Fla. Bar, for example, the Roberts court found that a state rule prohibiting judicial candidates from personally soliciting campaign contributions served a compelling state interest.
Such rulings seem to carve out a separate standard for judicial candidates than for other political hopefuls, Schultz said, possibly in the interest of protecting the public and legal profession. He thinks that Minnesota’s Supreme Court has picked up that cue in ruling along similar lines in MacDonald’s case. Said Schultz:
“It’s saying that judicial candidates have more strict regulations attached to them, in terms of what they can and can’t say.”