A lot of folks across the country are getting their first view of the Minnesota court system with the Coleman/Franken litigation. This Thursday, the case for the third time will be before the state Supreme Court. (Al Franken has asked the court to order the secretary of state and governor to certify the results of the recount and allow him to go to Washington and serve as Senator on a provisional basis.) Here are a few scattered observations about the Minnesota Supreme Court that may (or may not) come into play.
The Minnesota Supreme Court is not by nature political. In fact, the court will generally bend over backwards to avoid the appearance of even being political. The court’s ruling on the contested absentee ballots last December provides a good case in point. The ballot would only be counted as part of the recount if the county and both the Franken and Coleman campaigns agreed they had been wrongfully excluded. It was a decision that purposefully steered clear of any controversy or charge of bias toward one side or the other.
Four of the seven justices of the Minnesota Supreme Court were appointed by the incumbent governor, Tim Pawlenty, who is a Republican. However, two of those justices –Chief Justice Eric Magnuson and Justice G. Barry Anderson –were on the state Canvassing Board that oversaw the recount and have, therefore, recused themselves from any court challenges in the case. One of the three justices not appointed by Pawlenty, Paul Anderson, was appointed by a Republican, Gov. Arne Carlson. Justice Helen Meyer was appointed by Gov. Jesse Ventura of the Independence Party. The remaining justice, Alan Page, obtain his seat by election.
The two Pawlenty appointees who have not recused themselves — Justice Lorie Gildea and Justice Christopher Dietzen — have voted similarly on issues. (In fact, William Mitchell College of Law Professor Peter Knapp told Minnesota Lawyer last month that he does not believe they have ever wound up on different sides on a case to date.) Pawlenty, a former state lawmaker, has made clear that he favors judges who will not intrude on the legislative function and will who strictly construe the state and federal constitutions. Gildea and Dietzen will likely be favorably disposed to arguments that closely track the statutory language.
Perhaps because they are the only two members of the court not appointed by a Republican, Page and Meyer are reputed to be less conservative (or more left-leaning, depending upon your point of reference) than the other justices. However, given how assiduously the court avoids wading into politics, it is difficult to quantify just what this means. Meyer was a plaintiffs’ personal injury lawyer in her lawyer life, so I suppose it might have something to do with that work on behalf of victims. Page is involved with charitable endeavors for the underprivileged, including starting a foundation. These justice presumably might be more favorably inclined to fundamental fairness and individual rights arguments (rather than strict statutory construction ones), although they don’t always agree. For example, each of them wound up having a different take on the absentee-ballot issue. (Page dissented from Meyer’s majority decision on the ground that the campaigns should not have a role in determining which absentee ballots were wrongly rejected.) Meyer has been very actively engaged in the election case. In addition to writing the majority opinion in the absentee-ballot case, she asked a good deal of the questions when the case again went before the court on a separate issue. Page is the most senior justice on the high court.
Justice Paul Anderson is difficult to peg. He’s a free thinker from a very moderately conservative background. Like Page, he differed with the majority on how to handle the absentee ballot issue.
As a whole, the Minnesota high court rarely makes sweeping pronouncements. The fact that judicial elections here have been relatively tame may have something to do with the fact that the court is not overreaching or “activist.” True to its Midwestern roots, the court tends to go about its business, narrowly tailor its decisions and not create a stir. (Translation: Minnesota is not Florida.) On the other hand, the Minnesota high court is willing to make its presence known and make tough decisions when it needs to; it just isn’t obnoxious about it.
