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State Supreme Court candidate Jill Clark will still face three opponents in the Sept. 9 primary. A panel of retired justices denied her petition Tuesday to remove Associate Justice Lorie Gildea's name from the ballot.

In a hearing Tuesday morning, Clark argued that Gildea was illegally appointed and had an unfair advantage because the ballot labels her as an incumbent.

But in an order issued a few hours later, a panel of five retired Supreme Court justices rejected both claims, leaving Gildea in the race with the "incumbent" designation attached.

By appointing justices to fill vacancies, then labeling them as incumbents when they run for election, the state has "basically eliminated elections," Clark said in the hearing.

"The governor appointing and the word 'incumbent' on the ballot means it's not a real election," Clark said. "Judges are not being selected by the electorate. They're being selected by the governor."

Because Clark's case involves the sitting Supreme Court, a panel of five former justices was appointed to hear the arguments.

Appointing judges who later run for re-election follows a precedent stretching back to 1864, assistant Attorney General Nathan Hartshorn argued.

Nothing has changed since a 1992 decision upheld labeling those judges as incumbents, he said.

"Most judges are initially appointed," he said. "Nothing has changed since the [1992] precedent."

Justices seemed sympathetic to the argument.

"It seems to me that the power of precedent should mean everything," acting Associate Justice Lawrence Yetka said.

Clark's complaints about Gov. Tim Pawlenty's use of the appointment process were "irrelevant," Hartshorn said.

The justices issued the order quickly so that the primary, two weeks away, could continue as scheduled. A written opinion has not yet been issued.

Libby Nelson • 612-673-4758