Minnesota Lawyer Blog

As we continue with our video election coverage of the state appellate court races, we present Hennepin County District Court Judge Deborah Hedlund, who is challenging Judge Lorie Skjerven Gildea for her seat on the Minnesota Supreme Court. Hedlund has spent the last 28 years on the trial court bench. Prior to being a judge, Hedlund worked in the Minnetonka City Attorney's Office and as an attorney in private practice.

In the clip below, Hedlund discussed why she believes voters should pick her for the Supreme Court seat currently occupied by Gildea. (Video of Gildea appears in the post below.)



Click here for the YouTube version.

Minnesota Lawyer this week presents its video coverage of the three appellate court races. We start today with the race between Supreme Court Justice Lorie Skjerven Gildea and Hennepin County District Court Judge Deborah Hedlund.

Gildea, who was appointed to the Supreme Court by Gov. Tim Pawlenty in late 2005, served briefly on the Hennepin County District Court. She has been also been a prosecutor in Hennepin County, counsel for the University of Minnesota and an attorney in private practice.

In the interview below, Gildea discusses the reasons she believes voters should retain her on the state Supreme Court.



Click here for the YouTube version.

Supreme Court Chief Justice Eric Magnuson is working the rooms across the state to garner support for an additional $54 million for the justice system and told Minnesota Lawyer he’s gratified at the public reception so far although he knows there is a lot more work to do with the governor and the legislature. A measure of the court’s success in getting its message out was Sunday’s editorial in the St. Cloud Times, “Our view: Justice system requires funding.” It cautions, “Remember, legislators and the governor largely created this situation with their latest budget-balancing efforts. They need to fix it or justice might not just be delayed (even more); it might well be denied statewide.”

Also this week, Magnuson attended the MSBA Appellate Practice Council launch of its quarterly lunch series, designed to elevate the practice of the appellate bar and bring together appellate practitioners and appellate judges to discuss current appellate practice issues. Not only did he attend, he set the table when the caterers were late. “I’ve always been a hands-on kind of guy,” the chief joked modestly.

A five-member panel heard oral arguments this morning regarding the petition filed by Jill Clark, who is running for office against Supreme Court Justice Lorie Gildea.

Clark argued that it was unfair, and possibly even unconstitutional, to have Gildea listed on the ballot as an incumbent, and asked that either Gildea be removed from the Sept. 9 primary election ballot, or have her status as incumbent removed.

She also argued that since Minnesota first passed a statute putting candidates’ incumbent status on election ballots in 1949, only two Supreme Court Justices have been elected without being appointed first by a governor -- Donald Peterson in 1965, and Alan Page in 1992. That pattern indicated an unfair advantage for incumbent candidates, she said.

Arguing on behalf of the respondents, who included Gov. Tim Pawlenty and Secretary of State Mark Ritchie, Rice County Attorney Paul Beaumaster said it would not only be impractical and prohibitively expensive for all 87 Minnesota counties to change their ballots two weeks before the primary, but that the counties wouldn’t have the discretion to do so without the go-ahead from the Secretary of State’s office -- which would in turn need to be ordered to do so by the court.

More information on today’s hearing will be in Monday’s issue of Minnesota Lawyer.

Minneapolis attorney Susan Holden, Gildea's campaign chair, has said the campaign anticipates raising between $100,000 and $200,000, which would be similar to the amounts raised in the past by former Chief Justice Kathleen Blatz and former Justice James Gilbert when they successfully fended off challenges. Holden also said Gildea's campaign is prepared to raise more "if necessary." (Click here to see the full Minnesota Lawyer article on the judicial races.) While a low six-figure campaign may sound like a lot to some, it's actually not much to spend for a statewide campaign, particularly when one looks at the millions spent on the politicized judicial races experienced in some states. In one recent Wisconsin high court alone, more than $3.6 million was expended. Now that's a lot of hay!

Alan Lawrence Nelson -- on of the two candidates challenging Justice Paul Anderson for his seat -- has unveiled his biographical information on his website. It turns out that, in addition to being a lawyer, Nelson has been a software engineer for 23 years. He describes his software and law careers ar "parallel."

"I pride myself on keeping clients out of the courtroom," he writes on his website. "I’ve been doing it for 16 years. General areas of practice include estate planning, real estate, business contracts, and copyright law."

Nelson sees his computer experience as an asset to the high court. "Software Engineering is probably one of the best non-legal training careers for a Supreme Court judge," he writes. "A software engineer has to be able to read thousands (sometimes millions) of lines of source code; analyze megabytes of trace data; decypher [sic] the intent of the original designers (and all the subsequent engineers who have 'fixed' the code); and then arrive at a solution that solves today’s problem and that can withstand future changes."

Nelson also says he will not accept campaign contributions, and believes in keeping politics out of judicial elections. "Like many people, I’m worried about politics and negative ads creeping into judicial elections. Accordingly, my campaign is focused solely on my qualifications to be the next Supreme Court Associate Justice," he writes.

Anderson's other challenger, Tim Tingelstad, is a child support magistrate in the 9th Judicial District. Tingelstad makes a point of noting that his Biblical worldview informs his decisions as a judge. He has run for judgeships twice before -- once for a Supreme Court seat and once for a trial court seat. His website is http://www.highesthill.com.

I just checked the judicial-elections portion of the Secretary of State's website and so far today it looks like there's not much new to report. It's likely to be a slow day for filings on the eve of the 4th of July holiday, with everyone apparently thinking about barbecues and time on the lake rather than judicial races. In fact, many have trickled out of their offices already, except for, of course, us poor ink-stained wretches and you, our loyal blog reader.

I had hoped to bring you news of the races for the Minnesota Supreme Court. As I mentioned in a prior post, challengers have filed against both justices up for election. Information is easily available on Justice Lorie Gildea's opponent, Rick Gallo, who has worked in the Appellate Division of the Minnesota State Public Defender's Office for more than two decades. However, I was able to unearth very little in my preliminary search for information on Justice Paul Anderson's challenger, Alan Lawrence Nelson.

In order to bring some further illumination on his candidacy, I contacted Mr. Nelson yesterday at the phone number provided on his filing. It went right to voice-mail. This morning, I received the following response via e-mail: "I can appreciate your desire for timely information, but I am deferring all questions until my website is fully active on July 16th. The website will have a full resume/CV and biography section."

He also invited me to shoot him an e-mail with any further questions after that date. In the meantime, here's a link to his website, which currently contains only a sentence stating that it will become active on July 16, which, incidentally, is the day after the filing period ends at the Secretary of State's Office.

We will provide more information on this and other races when we have it. In the meantime, enjoy some well-deserved time off. We will not be posting tomorrow, so enjoy that hot dog or burger, and of course ...

It's official -- both Minnesota Supreme Court justices up for election in the '08 election cycle will face challengers.

F. Richard Gallo, an assistant state public defender who has worked in the office's appellate division for 23 years, has filed to run against Minnesota Supreme Court Justice Lorie Gildea.

Meanwhile, Minnesota Supreme Court Justice Paul Anderson will face a challenge from attorney Alan Lawrence Nelson, who also filed today. The state's attorney-registration website lists Nelson as having been admitted to the practice of law in Minnesota in 1992. It also says he doesn't currently carry malpractice insurance and doesn't represent private clients. It also lists an address in Maplewood. At present, that's all the info I have on that challenger.

Our readers in the 9th Judicial District no doubt recall Judge Terrence Holter, one of handful of local judges who have actually managed to lose their seat in an election challenge. Holter was defeated in 2006 by his former law clerk, John Melbye.

Holter subsequently applied to (now former) Chief Justice Russell Anderson to sit on cases by designation as a “retired judge.” (As a means of dealing with resource issues, state law allows the chief justice to appoint retired judges to preside over individual cases.) Anderson, who knew Holter for many years as both a fellow Bemidji lawyer and a fellow 9th District judge, denied the request, concluding that such an appointment would be inappropriate under the circumstances. As was chronicled by City Pages last April, Holter was pretty upset at being spurned by the chief. (See "Judgment call: A former judge accuses retiring Supreme Court Chief Justice Russell Anderson of playing politics.")

A Bemidji couple -- Nick and Patricia Gould -- sought assurances from the state high court that Holter would never get such an appointment. With a new chief coming in, they were worried that Holter’s request would fall on more receptive ears.

Fear not, was essentially the message they got from the high court shortly before Eric Magnuson was sworn in as the 21st chief justice.

“[T]he policy of chief justices has been not to appoint judges who have lost elections to serve as retired judges. Chief Justice-designate Magnuson has indicated he will follow the policy when he assumes office,” wrote Supreme Court Commissioner Richard Slowes in a letter dated May 28.

Nick Gould is happy with the response, but not 100 percent happy. “There ought to be a written policy stating that if you get voted out of office, you don’t get to sit on any more cases,” he said.

Today is Chief Justice Russell Anderson's last day on the court (unless he works over the weekend), and the bench sent him home in style with seven opinions issued this afternoon. They are available at the court's web site, but here's a synopsis, listed in the order in which they are listed by the court. The court:

Remanded for resentencing in a case where an upward departure was based on uncharged criminal conduct (State v. Jackson);

Said that a plaintiff alleging sexual harassment claims under the Minnesota Human Rights Act based on sexual harassment by a supervisor is not required to prove that the employer knew or should have known about the harassment and failed to take timely and appropriate action (Freiler v. Carlson Marketing Group);

Said that where a child had been struck with a small paddle about 36 times there was no showing of physical or mental injury amounting to “physical abuse” under the child protection statutes (In the Matter of the Welfare of the Children of: N.F. and S.F., Parents);

Reversed a termination of parental rights case because substance abuse alone does not make a parent palpably unfit and the county may not unilaterally decide that reunification efforts would be futile (In the Matter of the Welfare of the Children of: T.R., T.M., P.P. and B.H., Parents);

Reversed summary judgment for a bar in a dram shop case where a person chose to evade arrest by jumping into a river and drowned (Osborne v. Twin Town Bowl);

Said that federal Medicaid law limits the scope of recovery from the estate of a nonrecipient spouse and that Minn. Stat. sec. 256B.15, subd. 2 is partially preempted to the extent that it authorizes recovery from the surviving spouse's estate of assets in which the deceased Medicaid recipient did not have a legal interest at the time of death (In re the Estate of: Francis E. Barg, a/k/a Francis Edward Barg); and

Said that the rapid, natural dissipation of alcohol in the blood creates a single-factor exigent circumstance that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular homicide or operation (State v. Shriner).

Here in Minnesota we are in the waning days of the "Anderson Court" -- the rather unique situation our high court has had of having three out of seven justices with the same surname. (I don't know who this "Ander" guy was, but he really seems to have gotten around.) Chief Justice Russell Anderson, who is stepping down on June 1, will be feted at a retirement part hosted by the State Bar on Thursday. Once he departs, there will be only two Justice Andersons left on the court -- Paul Anderson and Barry Anderson. (Minneapolis attorney Eric Magnuson has been appointed to replace Russell Anderson as chief, and, as any native Minnesotan knows, there is a world of difference between the names of Ander-son and Magnu-son, or at least five letters of the alphabet.)

All three Justice Andersons originally got their seats on the court through gubernatorial appointment rather than the election process, so their presence there has little to do with the fact that Scandinavian surnames have historically been gold at the ballot box in Minnesota. (As some may recall, a high court candidate once tried adopting his wife's Scandinavian family name as his middle name to help him win election to the court. It didn't work.)

There is no evidence this "Anderson bloc" has really made any difference in real terms. They do not appear to have any proclivity to vote together -- and, in fact, I recall at least one decision where the majority opinion was authored by one Justice Anderson, with another Justice Anderson specially concurring and the third Justice Anderson dissenting. (Kind of sounds like the "Three Faces of Eve," doesn't it?) In fact, as near as I can divine, the major advantage of having three Justice Andersons on the high court has been to give the governor a nearly endless supply of jokes about it. And, as we all recently witnessed with the governor's rather unfortunate quip after the fishing opener, he can use all the help in that department he can get ...

The filing period for judicial elections (and, of course, other state elections as well) starts in about six weeks. Candidates must file with the Secretary of State between July 1 and 15. But campaign season appears to have already begun -- at least for the two Minnesota Supreme Court justices up for election this year.

As we mentioned in a post Friday, Justices Paul Anderson and Lorie Gildea -- the two members of the high court whose names will appear on the 2008 ballot -- have taken visible public roles in this week's Sesquicentennial festivities. Anderson will be impersonating a 19th century high court justices at various events; Gildea not only is portraying the state's first justice (who happens to have been, not surprisingly for the time, a man), but also is taking on a second role portraying the state's first woman lawyer. In the spirit of the first role, she even agreed to ride a horse.

Now, I can't say for sure there is an election tie in. For example, I have little doubt that Anderson -- who is well-known as a court history buff and as the high court's goodwill ambassador at public events -- would not have to be asked twice to be a part of something like this. And perhaps Gildea has always wanted to ride a horse in period costume during a parade, for all I know. But there is little doubt that these public platforms afford the justices an opportunity to be seen by John (and Jane) Q. Public, who don't often get over to the Minnesota Judicial Center to see the high court in action.

Even putting election-year politicking aside, it's no secret that the state high court has increased its community outreach efforts substantially over recent years. Former Chief Justice Kathleen Blatz made this a priority as part of the courts' efforts to educate the public on its role -- and Chief Justice Russell Anderson has continued those efforts. Outreach efforts have included holding oral arguments "on the road" in locations throughout the state, including high schools and law schools. (Hopkins High School last week hosted an oral argument, for example.)

The efficacy of the outreach efforts is difficult to quantify -- and, despite all past efforts, the judiciary remains by far the most misunderstood branch of government. Nonetheless, I think that it's an important part of the judicial function to at least try to bring a better understanding to the general public. While donning ancient jurist garb and riding a horse or strolling around the Capitol grounds may on its face have limited utility in fulfilling this function, a few folks may just get curious enough to start boning up on these robe-clad individuals who make up a third of their government. If it does that, I suppose wearing cowboy boots is a small price for a justice to pay ...

The Minnesota Supreme Court recently ruled that where an incorrect transcript of a statement the defendant made to police was introduced at trial, the defendant is nevertheless not entitled to a new trial in the interests of justice. The case, State v. Green, was handed down last week.

The case involved a particularly nasty issue -- whether a father improperly touched his 4-year-old daughter when he was helping her clean up after swimming in a lake. The jury, which ultimately convicted the defendant of both first- and second-degree criminal sexual conduct -- had received a transcript of the defendant's alleged conversation with police. According to the transcript, in response to the question, "Where did you put your fingers?" the defendant replied: “I suppose in.” Later the defense argued that the statement was “I suppose um.”

What’s disturbing is that the state conceded the transcript was erroneous, but argued that it was the defendant’s fault that it went in. The defendant was originally only charged with second degree criminal sexual conduct, which didn’t require penetration, so the defense attorney didn’t focus on that statement.

The court determined that the interests of justice didn’t require a new trial, essentially because there was other persuasive evidence against the defendant. (The court also noted the defense had use of the tape of the interview with police.)

Justice Paul Anderson, joined in dissent by Justice Helen Meyer, wondered what could be a stronger case for a new trial “in the interests of justice” than this one, where “the state’s transcription error changed a meaningless utterance into a confession of the defining element of the crime.”

A new trial would be expensive, but other than that I can’t see the downside of granting it. The burden to the state is a small price to pay to ensure a fair trial. And if the other evidence against the defendant really is so compelling, the state shouldn’t be reluctant to retry the case.

There’s an outstanding CLE opportunity coming our way in conjunction with the 27th Annual Law Day Testimonial Dinner. Not only that, but it’s an opportunity to contribute to a worthy cause, The Legal Aid Society, since the tuition will be donated to it.

“Masters of the Courtroom” will be presented on Thursday May 1 and offers six CLE credits for $350 with a faculty consisting entirely of Fellows of the American College of Trial Lawyers. The combined value of jury verdicts and settlements obtained by the faculty exceeds $10 billion. In approximately the last 12 months, the presenters have obtained jury verdicts of $131 million, $52 million, $30 million and a number of settlements well in excess of eight figures.

It will be followed by the law day dinner, featuring Tom Goldstein, co-head of the Supreme Court Practice Group at Akin Gump in Washington D.C. and author of the SCOTUSBLOG.

As has been previously reported, a recent University of California-Davis law review study shows that the Minnesota Supreme Court ranks fifth in the nation among state high courts that are followed by other courts. The study analyzed each state's Supreme Court opinions back to 1940, some 24,000 rulings. The full text is available here.

Responding to the reports at a panel discussion with students at the University of St. Thomas School of Law yesterday, Chief Justice Russell Anderson said he was proud, but not surprised, at the study’s findings. The court’s opinions are often followed because the court is not result-oriented, he said. “We [want] reasoned, rational decisions explaining how we got [to our conclusions],” he said.

Justice Helen Meyer also attributed the study’s results to the high level of practice before the court. “It’s also because we have a great bar,” she said.

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.