Minnesota Lawyer Blog

A good representative crowd from the local legal community turned out to bid a fond adieu to retiring Minnesota Supreme Court Chief Justice Russell Anderson at the Marriott City Center last Thursday. The retirement party was sponsored by the Minnesota State Bar Association. Most of the state's biggest law firms purchased their own tables at the dinner event to say goodbye to the chief, whose retirement becomes official on June 1.

The highlights included a video presentation from Justice Alan Page, who was in New York City for a previously scheduled commitment. It seems the chief did not give his associate justices enough warning of his retirement to make sure that their calendars were clear for his party. (How very Scandinavian of him!)

Speaking of associate justices at the event, MSBA President Brian Melendez garnered a few laughs when he pointed out during his remarks that Justice G. Barry Anderson had told him he would not stay for Melendez's remarks unless he was given "equal time." In addition to being MSBA president, Melendez is of course, the chair of the state's DFL. Barry Anderson, on the other hand, was active in the state's Republican Party prior to joining the bench, serving as its lawyer for 10 years. After reiterating Barry Anderson's quip, Melendez called out for the justice -- and, sure enough, he had, in fact, actually left.

When Chief Justice Russell Anderson got up to make his remarks after Melendez spoke, he drew laughter when he assured the crowd that Barry Anderson had left to avoid hearing his remarks, not Melendez's.

The chief justice had a few good zingers -- including taking longtime State Court Administrator Sue Dosal to task for spreading around his best stories so he couldn't tell them. Perhaps it was just a coincidence, but earlier in the evening, while Dosal was making her goodbye remarks to the chief and sharing some of those very same stories, a technology glitch caused the microphone to cut out ...

The cover story in this week's City Pages is a provocative look at what one former judge feels are unduly political machinations behind the scenes in Minnesota's courts system.

In Paul Demko's article, retiring Ninth District judge Terrance Holter talks about the complications and gamesmanship involved in the 2006 judicial campaign that resulted in the election of a former clerk of Holter's, John Melbye -- and how outgoing Supreme Court Chief Justice Russell Anderson declined to appoint Holter as a retired judge after he lost the race to Melbye.

The article has a tinge of sour grapes to it, but the article is an interesting look at how loyalties and even family ties can become knotted in politics when a place on the bench is at stake.

It’s ironic that Minnesota’s outgoing Supreme Court justice, Russell Anderson, has been so outspoken about his fears that an open election process would politicize the process of choosing judges when one considers how the process of choosing his replacement contains the potential to suggest political expediency, if not outright cronyism.

Gov. Tim Pawlenty goes back years with new chief justice Eric Magnuson; the two practiced together at Rider Bennett, worked together on Pawlenty’s gubernatorial campaigns, and by most accounts are good friends. Certainly, there’s nothing wrong with knowing the person you’re appointing to such a crucial position.

At the press conference to announce Magnuson’s appointment, Pawlenty, when asked about this issue, said, “Eric is intimately familiar with the court, so that doesn’t concern me.”

Fair enough. But what’s that old saying about even the appearance of impropriety being improper?

Unilaterally hoisting a longtime colleague with no experience on the bench directly to the high court’s top spot looks, at least to a lay observer, a little too convenient -- especially when the appointee was previously in charge of screening judicial candidates for the governor. Throw in the fact that Magnuson is Pawlenty’s fourth appointee to the high court, officially making it “his” court, and it’s hard to refrain from indulging in a bit of skepticism about the appointment process.

Magnuson’s credentials might be sound, but Minnesotans deserve some assurance that he was given the job based on his credentials alone, not his connections. It might be time for a formal screening process to accompany all high-level judicial appointments in Minnesota. Having the top candidates vetted by an independent commission -- even an ad hoc one for special cases like this -- would help lend some needed transparency to the process.

Magnuson comes across as remarkably informed and articulate on court-related topics. He’ll probably do a fine job. It’s too bad that the circumstances of his appointment seem perfectly aligned to invite scrutiny, deserved or otherwise.

When former Chief Justice Kathleen Blatz retired, the present Chief Justice, Russell Anderson, called her “the captain with the mighty heart.” The phrase could with equal accuracy be applied to Anderson himself. Anderson announced his retirement from the bench yesterday and it is a loss to the state. It’s a loss not only because it’s the fourth vacancy on the court in four years, but also because Anderson packed a lot of leadership into two years as chief.

Only hours after Anderson took the oath in January 2006 the U.S. Supreme Court declined review in Republican Party v. White, leaving the system of electing judges in flux, where it remains. Anderson immediately announced that the state of Minnesota would begin a conversation about how to elect judges post-White, and that conversation is continuing at the Legislature where a constitutional amendment is under consideration. The legislation may not pass this session, and reasonable minds differ about what elections should look like in the future, but there certainly has been a conversation. Any interested citizen has had an opportunity to be heard.

Anderson and the rest of the court also got pummeled shortly into his term with ethics charges that proved baseless after an investigation by the Board on Judicial Standards. Former Senate Majority Leader Dean Johnson said in public that Anderson lied about allegations that the members of the court discussed same-sex marriage with him. He and Justice G. Barry Anderson were also accused of campaign funding violations by attending a judicial retreat, and that charge was also dismissed by the Campaign Finance and Public Disclosure Board.

To the public Anderson appeared to be a fortress during these storms, which also occurred at the time when the entire court system was moving to a unified state-wide administration under a Judicial Council--a system that Anderson helped to shape and deliver. Regardless of the stress to employees occasioned by that change, that transition has appeared to the community to be virtually seamless.

Anderson once told me he was surprised to be named chief. Whether or not it was a surprise appointment to the rest of the state, it was a fortunate one.

During a speech yesterday on efforts to revise the state's system of judicial elections, Minnesota Supreme Court Chief Justice Russell A. Anderson warned that there are "storm clouds on the horizon" that threaten judicial independence.

Anderson was, of course, speaking about the increasingly partisan nature of judicial races throughout the country. In a number of states with judicial races, special interests groups have been pouring money into the races in the hopes of fostering a judiciary more favorably inclined to their points of view. So far Minnesota has remained relatively unscathed by this disturbing trend, but proponents of change to the state's judicial election system, including Anderson, believe that it's only a matter of time before the tsunami reaches our state.

"It has been said that 'The time to repair the roof is when the sun is shining.' Well, the clouds are gathering and the sun is not going to shine on us much longer," Anderson said in the June 29 address, delivered at the Minnesota State Bar Association's annual convention at the St. Paul RiverCentre.

There are a few competing reform proposals out there right now. One would switch Minnesota to a retention-election system whereby voters would decide whether to retain judges up for election rather than chose between the incumbent and a challenger. Another proposal is to switch to an appointments system with a commission that would evaluate judges at the end of their term to determine if they should be retained for another term. There are also several other proposals, including one that would involve the Legislature in the process. All of the proposals would require that the Minnesota Constitution be amended -- a daunting prospect. Despite the potential problems with the current system, many believe the voters of the state would not be very receptive to efforts to alter or end their role in the selection and retention of judges.

Anderson did not take sides on the debate of which approach should be used to keep Minnesota judicial selection nonpartisan. In an apparent nod to the concerns about the public's receptivity to voting reform measures, he urged change proponents to adopt a practical approach with a real hope of passage. He also called on the legal community to unite behind a single approach rather than remain fractured over the issue.

"A divided legal community will assure only one thing -- failure," the chief justice said.

After references throughout his speech of the excellent reputation that the judiciary in Minnesota currently enjoys, Anderson summed up: "Together, we have built one of the best court systems in the world here in Minnesota, one of the most efficient, most professional, and most innovative. Minnesota has a lot to lose. Let it not be said that it was lost on our watch."