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State Supreme Court to former justices: Wait three years

Remember the kerfuffle last fall between Supreme Court Justice Paul Anderson and former Chief Justice Eric Magnuson at the State Canvassing Board during the Mark Dayton-Tom Emmer recount?

Anderson gave Magnuson, a member of the 2008 Franken-Coleman canvassing board, a hard time for parsing some standards on challenged ballots.

More significant and dramatic was the tension between the two because of Magnuson’s appearance before such a high-profile board that included two Supreme Court justices (Anderson and David Stras) just four months after leaving the Supreme Court bench.

Within the legal community, Magnuson’s appearance for Emmer in a case that could wind its way to the Supreme Court raised lots of eyebrows.

Well, Magnuson’s former colleagues on the state’s highest court took care of that this week.

Chief Justice Lori Gildea
Chief Justice Lori Gildea

In an order (PDF) released Wednesday and signed by Chief Justice Lori Gildea, the court declared that “a former member of the Minnesota Supreme Court shall not participate in any professional capacity in any case that was pending in the Supreme Court during the member's tenure on the court, or appear before the court as counsel for a client, in person or in writing, in any case or matter for a period of three years after leaving the court.”

Three years.

As written, Magnuson’s actions during the 2010 recount would not have fallen exactly into this zone; the recount case was not pending during his time on the court and, even though the recount matter did go up to the Supreme Court, Magnuson didn’t appear for Emmer or place his name on any legal papers when it did.

Still, the message is clear: Former justices, don’t come back too soon, and don’t make this institution look too cozy.

William Mitchell College of Law professor Peter Knapp, the state’s leading Supreme Court follower, told MinnPost that in recent years there have been a handful of former justices who have moved back to private practice. Most notably, Sam Hanson, Magnuson’s partner at Briggs and Morgan, left the court in January 2008, and he quickly did appear before his former colleagues, causing an internal stir at the Judicial Center.

Indeed, Hanson’s name was on Emmer’s legal papers before the Supreme Court last fall, and Hanson was in the courtroom, too. That was within this new three-year blackout period. Won’t happen again.

Knapp, though, believes Gildea’s order could have more far-reaching implications.

He said, “It wouldn’t surprise me” if this three-year judicial quarantine becomes a “norm among practitioners” for any forum in which a Supreme Court justice has a “deciding role.”

That is, if there’s a Justice on a board of any sort, then Knapp could imagine that “as a rule of thumb” a former Justice wouldn’t appear before it for that three-year-period, too.

Magnuson appeared before the canvassing board last fall barely 150 days after he left the bench. Anderson and Stras sat in a deciding role on the board. It could be that from this point on such a situation won’t occur if the formal order becomes a court custom.

“It was time to have a rule,” said Knapp. And now that rule is loud and clear.

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Comments (5)

I'm glad to see this rule being made. Doing so raises Chief Justice Gildea a few notches in my book.

I only wish the justices of the US Supreme Court would not only similarly respect the law and Constitution, but also begin to avoid the current and very direct involvement of some justices with organizations, such as Citizens United, and various other VERY conservative groups, and with individuals, such as the Koch Bros., who are likely to be deeply involved in cases coming before the court.

Despite their protestations that they, themselves, are not prone to the natural tendency of us humans to view our friends more favorably than we do others, and to cut them considerably more slack than we would those whom we do NOT know, such involvements leave very serious questions about the impartiality of those justices.

Their denials, their claims that they are able to rise above their own humanness, call into question their understanding of their own inescapably human psychology, let alone their ability to make reasonably objective, fact and evidence-based judgments about the actions of others.

I never knew Lori Gildea's name before the Franken recount. Since then, as far as I can tell, she has done nothing but reflect great credit on the Supreme Court, the legal profession, and herself as a judge. She restores hope that, liberal or conservative, judges may actually be capable of ruling impartially based on the law, rather than political persuasion. She's a conservative and I'm not, but I say the bench needs more like her.

I agree with Greg and Will. I'm a retired lawyer who despite my respect for former Chief Justice Magnuson as well as former Justice Hanson is totally disgusted with the actions of these former justices in immediately assuming activist roles upon leaving the bench. I would suspect that at least a few lawyers agree although they are unwilling to express anything publicly. I also suspect that a lot of non-lawyers agree.

This news needs more recognition than Minnpost has given it. Chief Justice Gildea has taken a solid and important step to preserving the integrity of the branch of government for which she is responsible. In doing so, future important cases that come before the court will be less susceptible to criticism and cronyism.

Call it refreshing. Call it having people in public service doing their jobs.

The article has some inaccuracies concerning my appearances before the Supreme Court. Although my Norwegian instincts are to just say nothing, it is important that matters of Supreme Court history be accurate.

When I retired from the Court in January 2008, my understanding of the unwritten policy was that former justices should not appear before the Court for one year. I followed that policy and did not "quickly" appear, as the article suggests. My first oral argument before the Court was June 10, 2009, over 17 months after my retirement. My signature on the brief in that case was in March 2009, or 15 months after my retirement. My only other oral argument before the Court so far was last month, February 2011, 37 months after my retirement. The article correctly notes that my name was on the brief in the Emmer recount case, filed about 35 months after my retirement.

I hope this is a helpful clarification.

Sam Hanson