BY Reed Anfinson
Minnesota Court of Appeals Judge Diane Bratvold was expected to rule Tuesday on whether or not Republican-endorsed state Senate candidate Torrey Westrom has established legal residency in the new District 12.
The new District 12 includes all of Stevens, Big Stone, Swift, and Pope counties. It also includes the nine southeast townships of Douglas County, including the City of Alexandria. It contains 16 western townships of Stearns County. Westrom’s former home in Grant County is now part of the new Senate District 9.
Last Wednesday and Thursday the challenge to Westrom’s residency in the new District 12, and whether or not he should be allowed on the Nov. 8 general election ballot, was argued at the Minnesota Judicial Center in St. Paul.
Ashley Klingbeil, an independent candidate running for the new District 12 Senate seat, and supporter Christine Fischer submitted a petition to the Minnesota Supreme Court Aug. 8 asking Westrom be taken off the ballot. Klingbeil, of Alexandria, is a conservative running under the party label “We the People.” Fischer, who lives in Glenwood, is a supporter and helped her gather the information they believe establishes Westrom did not establish legal residency in District 12.
When filing an affidavit of candidacy for the Minnesota Senate, a candidate certifies that he or she will be a resident of “this district for six months on the day of the general or special election.” May 8 was the deadline for establishing residency for the Nov. 8 general election.
In responding to Klingbeil and Fischer’s petition, Westrom’s attorneys, R. Reid LeBeau II and Benjamin Pachito, immediately called it “frivolous.” They also asked the court to dismiss the petition because it was submitted 69 days after Westrom submitted his affidavit of candidacy. The claim states Fischer and Klingbeil have failed to establish that Westrom isn’t a resident of Douglas County, which is in District 12.
Klingbeil and Fischer’s case before the appellate court was strengthened when Appleton attorney Brian Wojtalewicz filed to join the case on behalf of Murdock resident Victoria Guillemard. She claims there was evidence that Westrom has not established residency in the new district. Wojtalewicz has long been active in Democratic-Farmer-Labor (DFL) politics.
Westrom’s response to Klingbeil and Fischer’s claims on his residence included the following steps he took to establish residency at his new home on Lake Mary including:
April 29 – He informs the Grant County Assessor’s office that he is changing his homestead tax status to Douglas County.
May 6 – Westrom closes on Lake Mary property. The previous owner’s belongings are moved out within 24 hours.
Westrom changed the residence on his Minnesota I.D. card to the Lake Mary Address.
On or about May 6, Westrom contacted the Ottertail Power Company to have the electricity account for the new home changed to his and his wife’s name.
Westrom switched the propane service at this time as well, and executed a new, binding homestead insurance policy on the new property.
May 6-7 – Westroms moved their belongings to new home.
Since May 6, numerous people have picked Westrom up and dropped him off at the Lake Mary home, the response says. The family has hosted extended family at the new residence on numerous occasions as well, it adds.
Westrom registered to vote in Douglas County and cast his primary ballot there Aug. 9.
The court has “found that the candidate’s quick and consistent action in finding housing within his new district, even though his physical presence was limited and the housing appeared temporary to an outside observer, was enough to establish residency within the district,” LeBeau has argued.
In arguing that Fischer and Klingbeil’s claims were filed too late, LeBeau says that it a well-established law in Minnesota that when someone “has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay.”
His attorneys claim that because the filing was in their opinion late, it results in undue damage to “election officials, other candidates, and the Minnesota electorate in general” if Westrom is removed from the ballot.
They add, “This Court has ‘repeatedly stressed the need for diligence and expeditious action by parties bringing ballot challenges.’”
They also say that Klingbeil and Fischer’s evidence is weak and fails to establish grounds that Westrom is not a resident of District 12.
He further said the burden to provide clear proof that Westrom was not a resident of the new Senate district rested with the petitioners.
Burden of proof on the candidate
Wojtalewicz, testifying on behalf of Guillemard “objected to the clear and convincing burden of proof” being on the petitioners. There is no state statute that places that burden on the petitioners, “which is the ordinary legal requirement for a higher burden of proof,” he said.
In an email to the Grant County Herald, Wojtalewicz went on to “further point out language in the State election statute, MS 204B.44(b) that appears to require the accused candidate to present ‘sufficient evidence of the candidate’s eligibility. Thus, the true burden of proof should be on the candidate, not citizen petitioners trying to enforce a clause of our constitutional.”
Wojtalewicz cited the case of Monaghan v. Simon “where the Supreme Court removed former Rep. Bob Barrett as a candidate, where the trial judge emphasized the lack of Mr. Barrett’s credibility.
Wojtalewicz argued that “similarly, there were multiple indications of lack of credibility of the Westroms in the testimony and document exhibits.”
Wojtalewicz supported the legitimacy of Klingbeil and Fischer’s “favorable facts pointing toward non-residency from May 8 to August 24, the date of the hearing, and that the facts shown by the Westroms, including photographs of the interior, had signs of staging, that the residency claim was a sham.”
During testimony, Wojtalewicz said Westrom admitted three websites over which he had control continued to carry his Elbow Lake address despite him saying he had changed his residency to the Lake Mary residence near Alexandria. One was the Minnesota Senate web page amd two with the Minnesota Campaign Finance Board. It, Wojtalewicz said, requires the legal address of candidates.
Considering Westrom has served in both the Minnesota House and Senate over the past 25 years, he is very familiar with this requirement, Wojtalewicz said. Westrom also acknowledge that his Elbow Lake address was also carried on the Republican Caucus website.
Questions were also raised about a lack of mail tagged by the U.S. Postal Service as being forwarded from his Elbow Lake residence to this supposed new address on Lake Mary.
During the hearing, Wojtalewicz also would claim that Westrom and his wife, Anna, could not say with any certainty how many nights they had spent at their new residence despite saying “many.”
And, despite claims that there had been multiple events at the new residence, the Westrom’s could only produce a single photograph confirming them, he said.
Further, Wojtalewicz argued that some of the photographic evidence that the Westroms had provided as proof of occupancy of their new home looked staged.
Special election required
Should Klingbeil and Fischer be successful in removing Westrom from the ballot, it would require a special election to be conducted for the District 12 state Senate seat.
The removal of a major party candidate from the ballot requires that a special election take place the second Tuesday of February in the year following the election.” That would delay the election until Feb. 14, 2023.