Tuesday, March 21, 2006

Dean Johnson, CP, and a Spotty

Two posts at minvolved win a Spotty with an oak leaf collar. The first one was yesterday, and the second one this morning. Both deal with the political storm over remarks made by Majority Leader Dean Johnson. A Spotty, for those new to this blog, is award given to the writer of a letter to the editor, an op-ed piece, a commentary, and now a blog post who writes something that Spot wishes that he had written. [cash value 1/20th of a cent]

In the first post, CP examines some of the compromises and attempted compromises that have been put on the judiciary. Spot was not amazed to find that Republicans, and their shrieks of “judicial activism” feature prominently in the list. It is not minor irony that Republicans are now howling over casual conversations about DOMA that Dean Johnson says he had with a member or members of the Minnesota Supreme Court, who, after all, inhabit the same building and walk the same halls. Maybe they buy hot dogs at the same stand, although that doesn’t seem very judicial.

The post today follows on some things that Spot was going to write, but CP is a morning sponge, and Spot is neither morning nor sponge.

The papers this morning are full of Chief Justice Russell Anderson’s public comments about the question, and CP discusses them very well. Here’s a quote from the Chief Justice, a recent Pawlenty appointee by the way, from CP’s post; the link is there:
“We don’t give advisory opinions,” he said. “We decide these cases in the context of real cases with real people and real controversies. We do not prejudge them.”

Jeebus that sounds so noble. And of course, the Court does not render advisory opinions. But if Justice Russell is telling us that a Supreme Court Justice has never discussed a legal issue, not before the Court at the time, with a legislator or constituent, Spotty suggests that you take the statement with a grain of salt, a big grain of salt.

Now, boys and girls, Spot is going to tell you about Louis Nizer’s “Rule of Probability.” Nizer was a famous 20th century trial lawyer, more famous that Johnny Cochrane, even. Nizer’s rule helped him sort out conflicting evidence to figure out what really happened in a given situation. The rule is simple: “It probably happened in the most ordinary way.” One of Spot’s lawyer friends has a corollary to the rule: “Even if it didn’t, you’ll have trouble convincing a jury otherwise.”

You may say Spotty, that is just a statement of the obvious, but often it’s not. Let’s take a look at the present situation. Is it likely that Dean Johnson would run into a Supreme Court Justice from time to time? Yep. Is it likely that that the Majority Leader might talk shop about an issue that is occupying the Legislature and the Majority Leader’s mind, but not the Court? Again, yep. Is it likely that a Justice would thereupon draw himself up to his full height, stare at the Majority Leader, and say, in a voice soaked with contempt, “We don’t issue advisory opinions”? Of course not.

Dean Johnson’s mistake is – in all probability – taking some remarks made over that non-judicial hot dog and repeating them.

It is also interesting to note that Johnson's comments would probably be admitted in court - as proof that things were said - res gestae - but the Chief Justice's statements that comments were never made would be inadmissable hearsay, since he doesn't claim to be a party to the conversations and therefore has no first-hand knowledge.

It also bears repeating another point that CP made. Republican Greg Wersal has been successful in invalidating restraints against judges talking about political and legal issues in judicial elections and restrictions against judicial candidates seeking political party endorsement. CP links to an MPR article about this, but here’s the link, just for good order’s sake.

You ain’t seen nothin’ yet, boys and girls. When Greg Wersel – or Russell Anderson – runs for the Supreme Court with a Republican endorsement, just watch all those shiny-faced College Republicans, presently demonstrating outside the Majority Leader’s door, out campaigning and talking about Wersel’s position on gay rights, abortion, school vouchers, etc. and etc.

Can you say hypocrisy? Spotty thought you could.


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