Edith Schlain WINDSOR, in her Official Capacity as Executor of the Estate of Thea Clara Spyer, Plaintiff–Appellee, v. UNITED STATES of America, Defendant–Appellant, Bipartisan Legal Advisory Group of the United States House of Representatives, Intervenor–Defendant–Appellant.
Docket Nos. 12–2335–cv(L), 12–2435(Con). Argued: Sept. 27, 2012. -- October 18, 2012 Before: JACOBS, Chief Judge, STRAUB and DRONEY, Circuit Judges. Stuart F. Delery, Acting Assistant Attorney General, United States Department of Justice, Washington, DC (Michael Jay Singer, August E. Flentje, on the brief), for Defendant–Appellant.Paul D. Clement, Bancroft PLLC, Washington, DC (H. Christopher Bartolomucci, Conor B. Dugan, and Nicholas J. Nelson, on the brief; Kerry W. Kircher, William Pittard, Christine Davenport, Todd B. Tatelman, Mary Beth Walker, Office of General Counsel, United States House of Representatives, Washington, DC, of counsel), for Intervenor–
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Since it first became a State, Minnesota's Constitution has declared that voters have the right to elect their judges (1). The Minnesota legislature now is being urged to eliminate contested judicial elections by amending the Minnesota Constitution. Judges would no longer be elected. An unelected “expert” judicial selection commission would submit a list of judicial nominees to the governor. The governor would appoint all judges, but the governor’s choices would be limited only to nominees selected by the commission (2). The only voice left for voters would be a periodic opportunity to vote that an appointed judge should not be retained in office. A replacement judge would then have to be appointed from the commission’s list of nominees. The Republican Liberty Caucus of Minnesota strongly opposes any and all such proposals. Problems with the proposals include:
Voters will no longer have any opportunity whatsoever to directly select the judges who exercise tremendous power over civil and criminal legal matters affecting them. Control over the judiciary will be consolidated in the hands of an unelected commission. Such “expert” commissions are especially vulnerable to being captured by small but highly motivated special interest groups.
"Expert” commissions do not eliminate political considerations and bias in the judicial selection process. A study by law professor James Lindgren of Northwestern University found that, after accounting for credentials, judicial nominees appointed by President Clinton were 10 times more likely to be given the American Bar Association’s highest ratings than nominees appointed by the elder President Bush (3).
Judicial decisions, including those overturning laws enacted by elected representatives, could not be subject to review by the general public, except through a specific amendment to the Constitution. Instead of three co-equal branches that are accountable to the citizens of the state at different times, the proposal will shift the balance of power in the state away from voters. Voters no longer will be able to hold the judiciary accountable for its actions.
Therefore, the Republican Liberty Caucus of Minnesota encourages the Minnesota legislature to reject any constitutional amendment that restricts the right of voters to elect their judges. The legislature should instead consider reforms that enable more open and fair judicial elections. Appendix: An Overview of Minnesota’s Judicial Elections History of judicial elections Since the founding of the state, Minnesota's constitution has declared that judges must be elected (1). Vacancies are filled the governor and the judges appointed by the governor must stand for reelection in a subsequent general election. However, impediments to exercising this right been imposed by restricting the campaigns of candidates seeking judicial office. One restriction previously imposed was the announce clause, which prohibited a judicial candidate from speaking publicly on his or her views on disputed legal or political issues. This “announcement” clause was ruled an unconstitutional restriction of free speech by the US Supreme Court in case the Minnesota Republican party brought forward, Republican Party of Minnesota v White. After losing the White case, opponents of free and open judicial elections then began to push for the end of contested judicial elections, claiming this was required to ensure courts are impartial and not tainted by political considerations. The proposals to end contested judicial elections One prominent group calling for the end of judicial elections called itself the "Citizens Commission for the Preservation of an Impartial Judiciary" and is also referred to as the Quie Commission, after its chairman, former Gov. Al Quie. Members of the Quie Commission differed on details but agreed that contested elections, where more than one candidate may run for a judicial office should be eliminated. The majority report called for establishing so-called "retention" elections where voters can only vote on whether to retain or remove a judge but do not select the replacement judge if the incumbent is removed by the voters (2). The Melendez minority report, named after commission member Brian Melendez, who later was chairman of the Minnesota DFL party, called for putting the retention decision in the hands of an appointed commission. Both the Quie commission majority and minority report called for the Minnesota constitution to be amended to require the governor to fill judicial vacancies only from a list of nominees prepared by an appointed judicial selection commission. The current judicial appointment system used to fill judicial vacancies between elections does rely on a judicial screening committee, but the Quie Commission proposal greatly empowers this selection committee. The selection committee can only recommend people for judicial appointment; there is no requirement for the governor to abide by the recommendation of the panel. Moreover, the current commission is established by statute and can be abolished by the legislature. An amendment to the Constitution removes this power from the legislature. Given the new legislative majorities, in the upcoming legislative session there is widespread expectation that a constitutional amendment establishing retention election will be introduced and voted on by the legislature (4).
May 14, 2010 – Supreme Court justices (and all Minnesota judges) are supposedly chosen by the electorate, with the governor's appointment power applying ...
The point is the power to appoint judges is a tempting tool to reward your political friends and even relatives. Our MN Constitution specifically states, "Judges ...
File Format: PDF/Adobe Acrobat - Quick View publications are also available on the Internet at: www.house.mn/hrd/hrd.htm. ...... Powers. Recommend censure, suspension, removal, or retirement of a judge ...
(MN Constitution Article VI Sec. 7) In other words, we are supposed to elect our judges. They are not supposed to be appointed. Built in Advantages for the ...
Apr 6, 2010 – Before a governor appoints a District Court judge in Minnesota, he (or she) is ... is only a limited check on the governor's appointment power.
File Format: PDF/Adobe Acrobat - Quick View election more than a year after their appointment and every six years after that. ... How are Minnesota's judges selected in the first place? ....power to strike down unconstitutional laws is the only protection for the fundamental rights of the ...
Nov 5, 2012 – Three Minnesota Supreme Court justices are up for election or ... that Governor Pawlenty selected him for appointment was a testament to Justice ... As a non-lawyer, I've always felt safe voting for incumbent judges if I don't ...
Jan 10, 2013 – A replacement judge would then have to be appointed from the commission's list of nominees. The Republican Liberty Caucus of Minnesota...
Apr 8, 2010 – “Minnesota's only check on the governor's appointment power is to give ... judicial appointments, they can not only throw the judge out of office, ...
The court orders the appointment of a person (a conservator or guardian) to act as ... The conservator typically has the power to collect all the conservated assets, pay ... The judge determines, based on the petition, the investigator's report, and ...
March 27, 2013 3:2 AM
GMTUpdated: 03/26/2013 10:02:53 PM CDT
David Lillehaug addresses a
news conference Tuesday, March 26, 2013, at the state Capitol in St. Paul, where
Gov. Mark Dayton announced Lillehaug's appointment to the Minnesota Supreme
Court. (Associated Press: Jim Mone)
Minnesota Gov. Mark Dayton picked former U.S. attorney and longtime
Democratic insider David Lillehaug to be his second appointment to the state
Supreme Court on Tuesday, March 26.
Lillehaug is "one of the most brilliant minds I've ever encountered," Dayton
said.
A longtime litigator in private practice, Lillehaug represented
Democratic-Farmer-Labor Party's Dayton in the gubernatorial recount in 2010. The
two also sought the same job in 2000 -- U.S. senator -- which Dayton won.
Lillehaug, 58, also represented DFLer Al Franken in the recount after the
2008 U.S. Senate election.
He will replace Paul Anderson, who will reach the mandatory retirement age of
70 in May.
Lillehaug will join a seven-member court made up of four justices appointed
by Republican Gov. Tim Pawlenty, one elected justice, and Dayton's first
appointment, Wilhelmina Wright, who joined the court in October.
Lillehaug said he put his private interests aside for the four years he
served as U.S. attorney, and he's confident he can do so again on the bench.
"Being a judge is different," he said. "It requires fairness; it requires
impartiality; it requires adherence to precedent and principle. It's not about
politics. And as I mentioned, I know that I can leave that world of advocacy and
become a good justice because I've been through a similar experience before.
"That's what I have to do, and that's exactly what I will do."
Dayton cited a "long tradition of justices being
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appointed by governors with whom they've had political involvement in the
past" who then go on to do great things on the court. He said the job is "beyond
politics."
Anderson had been a campaign lawyer for the governor who appointed him,
Republican Arne Carlson. Two current justices appointed by Pawlenty, G. Barry
Anderson and Christopher Dietzen, also had GOP ties: Anderson was a lawyer for
the state Republican Party, and Dietzen represented Pawlenty during his 2002
campaign.
Paul Anderson, who appeared with Dayton and Lillehaug at Tuesday's
announcement, said it's an advantage for a judge to have political experience.
"My advice to the new justice is don't try to explain how you get here ...
and don't let anybody take any shots at you because you've been involved
politically," he said.
"We need people who have been in the trenches, know who they are going to
serve. ... I applaud loudly the background of the new justice, because that's
what we need in court."
Dayton cited Lillehaug's role as "lead counsel for cases involving some of
the most complex legal and constitutional questions of our time. They include:
establishing the rights of Minnesota's religious institutions under the
'conceal-carry' firearms law; challenging Governor Pawlenty's unallotment of
appropriated funds in 2009-2010; and representing my office on constitutional
issues regarding the 2011 state government shutdown."
Since 2002, Lillehaug has been an attorney at Fredrikson & Byron in
Minneapolis. His practice focuses on public law and complex litigation.
He serves on the St. Paul Chamber Orchestra board of directors, the Augustana
College board of trustees and an advisory council to the Humphrey School of
Public Affairs at the University of Minnesota, according to the law firm's
website.
Wright and Lillehaug will have to defend their seats in the 2014 election. No
more current justices are due to reach mandatory retirement until after Dayton's
first term ends; the next two to turn 70 will be Justice Alan Page in 2015, and
Dietzen in 2017.
Lillehaug is scheduled to be sworn in May 31.
The Associated Press contributed to this report. Doug Belden can be reached
at 651-228-5136. Follow him at twitter.com/dbeldenpipress.
DAVID LILLEHAUG, 58
Family: Married to Winifred Smith, one child
Education: Bachelor's degree, Augustana College in South Dakota; law
degree, Harvard University
Occupation: Attorney
Experience: Clerk to U.S. District Judge Harry MacLaughlin, 1979-81;
private practice lawyer, 1981-83, 1985-94, 1998-present; aide to Walter
Mondale's presidential campaign, 1983-84; U.S. attorney for Minnesota, 1994-98.
Political resume:
-- Represented Al Franken in 2008 Senate recount and Dayton in 2010
gubernatorial recount; represented Dayton's office on constitutional issues in
connection with 2011 state government shutdown.
-- Attorney/adviser for Democratic U.S. Senate candidates Hubert Humphrey III
in 1988, Paul Wellstone in 1990 and 2002, Walter Mondale in 2002, Amy Klobuchar
in 2006 and Franken in 2008.
-- Unsuccessful candidate for state attorney general, 1998, U.S. Senate,
2000.
18 hours ago – Gov. Mark Dayton announced the appointment of David Lillehaug to the Minnesota Supreme Court Tuesday afternoon. Lillehaug, a former U.S. ...
On Friday it was announced that longtime DFL attorney and former U.S. Senate candidate David Lillehaug and three judges are in consideration for the post, ...
23 hours ago – David LillehaugDavid Lillehaug, a Minneapolis attorney and former U.S. attorney for Minnesota, will be appointed today to fill the upcoming ...
David Lee Lillehaug (born 1954) is an attorney and a soon-to-be associate justice of the Minnesota Supreme Court. He served as the United States Attorney for ...
Mar 6, 1996 – There was a time when David Lillehaug was riding high. From star high-school debater in Sioux Falls and honors graduate of Harvard Law ...
Former U.S. Attorney David Lillehaug is well-recognized in the Minnesota legal community. His practice focuses primarily on complex litigation, but he assists ...
Greater Minneapolis-St. Paul Area - Shareholder/Officer at Fredrikson & Byron, P.A.
View David Lillehaug's professional profile on LinkedIn. LinkedIn is the world's largest business network, helping professionals like David Lillehaug discover ...
22 hours ago – Mark Dayton, right, applauds after he announced the appointment of David Lillehaug, left, to the Minnesota Supreme Court during a news ...
