Who Will Be Left On Minnesota Supreme Court To Hear Appeal?

April 13, 2009 2:39 p.m.

Here’s a good question as the seven-judge Minnesota Supreme Court gears up for an expected appeal from Norm Coleman, who is nearly certain to lose the election trial: Just how many justices will be left to hear it?

As it is, it already seems like two justices are solid bets to recuse themselves: Chief Justice Eric Magnuson and Associate Justice Barry Anderson, who served on the special state canvassing board, and previously recused themselves in state Supreme Court proceedings in this case, when the court addressed questions such as rejected absentee ballots and when a certificate of election could be granted.

But now we know that Justice Christopher Dietzen has donated money to Norm Coleman — the checks were written over five years ago, before Dietzen first became a judge — should he recuse himself? He’s already participated in the other litigation listed above, and in all fairness he didn’t seem to be biased.

And this one isn’t quite so solid, but some people might wonder whether Associate Justice Alan Page should recuse himself, because he appointed the three-member trial court. (That job originally would have gone to the Chief Justice — but he’d recused himself, leaving it to Page as the most senior associate justice.)Regarding Dietzen, Hamline University Prof. David Schultz tells us that the case for recusal points towards yes.

Schultz agreed with me that there’s no immediate evidence that Dietzen has actually behaved in any biased manner in this case. “But here’s where the issue changes a little bit,” Schultz explained. “If it’s now starting to run on the blogs at this point, that perhaps he’s got a conflict because of the contributions, the Minnesota codes of judicial conflict address not just actual conflict but the perceptions of conflict.”

“That’s not saying he shouldn’t have recused himself before,” said Schultz, “but that suggests to me he may have more of an appearance of conflict or bias than he would have before.”

As for Page, Schultz doesn’t think there’s any real conflict here. “That’s too distant,” he said. “Statutorily, he had to appoint the district court, so that will have no bearing whatsoever.”

Schultz further noted that the decision to recuse is made by the individual judges themselves, and they’re usually very good at self-policing. As for himself, Schultz said what he would do if he were under the circumstances Dietzen is in: “If I were sitting on the bench in that matter, I would recuse myself, because at this point there is a paper-trail record of political contributions to a party in the case.”

We’re getting into an interesting conundrum here, which doesn’t have a clear answer outside of some obvious calls: At what point is a judge ethically permitted to have his or her own private opinions, and where does the judicial system demand more?

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