Conjunction: What’s your function?

Four attorneys argued Shefa v. Walz, Ellison and Gildea case on Wednesday. Left to right, they are Andrew J. Crowder, Barry M. Landy, Scott M. Flaherty and Peter J. Farrell. (Photo: Kevin Featherly)

 

Before Supreme Court, Board of Pardons flap centers on simple constitutional term

 

The governor not only lacks the unilateral authority to grant clemency that his predecessors enjoyed more than a century ago. His thumbs up on the Board of Pardons, constitutionally speaking, is unnecessary.

Or so a lawyer asserted during arguments before the Supreme Court Wednesday. The case is Shefa v. Walz, Ellison and Gildea—a dispute that has a lot to do with the meaning of the simple term “conjunction.” But we’ll get to that.

The case is an appeal from Ramsey County District Court case, where a judge ruled the law requiring unanimous Board of Pardons votes to be unconstitutional.

It’s not, lawyer Scott M. Flaherty argued. But neither would a majority rule violate the Constitution, he said. “There is no constitutional prohibition on the Minnesota Legislature enacting a rule that says two-thirds of the pardons board can cause a pardon to issue,” he said.

You might almost think he’s arguing the case for Gov. Tim Walz, who also thinks the majority should rule. Flaherty isn’t. A two-thirds vote of the board could be enough—constitutionally speaking—even if the governor voted no, he said.

That’s not how things work, and it’s likely not how Walz would want them to work.

To be fair, Walz’s attorney Barry M. Landy never argued Wednesday for unilateral power over pardons. Nor did Andrew J. Crowder, who represents rejected pardon petitioner Amreya Rahmeto Shefa, who faces imminent federal deportation to Ethiopia if her clemency request is not granted. She and the governor are aligned in the dispute.

They contend that a two-thirds majority board vote should be enough—as long as the governor votes yes when the panel splits. That would satisfy the constitutional requirement that the governor must act “in conjunction with the Board of Pardons” to grant clemency, they maintain.

Flaherty’s bold contention may be something of a side issue in the case, but it’s still noteworthy. He represents the appellant, Supreme Court Chief Justice Lorie Gildea. She is the Board of Pardons member who challenged Ramsey County District Court Judge Laura Nelson’s ruling that Minn. Stats. §§ 638.01–.02 are unconstitutional. (Gildea is recused from the Supreme Court case and will take no part in the decision.)

Flaherty’s assertions seemed to take Justice Gordon Moore by surprise. “Did I hear you just say that the governor’s participation on a pardon vote is not constitutionally required?” he asked.

“I believe so, yes,” Flaherty answered. “The Legislature could, consistent with the Constitution, pass a law saying that any two-thirds of the pardon board may issue a pardon.”

“So, if the chief and the AG agreed that a pardon shouldn’t issue, then the governor’s vote really would not have any effect?” Moore asked.

Flaherty disagreed it would negate the governor’s role—he would still be acting “in conjunction” with it. However, Flaherty said, “It certainly would mean that his negative vote wouldn’t control the outcome.”

In recent years, Gildea has held the veto card in pardon decisions because of the unanimity requirement. But neither she nor any other chief justice has had the ability to override a governor’s no vote and grant a pardon simply by winning over the Attorney General.

At any rate, despite its eyebrow-raising power, that line of argument really isn’t the heart of the issue in the case. Even Flaherty suggested setting it aside. “That probably should wait for another day until the Legislature writes such a law,” he said.

Heart of the matter

The real center of the dispute seems to be what the word “conjunction” means.

To Flaherty, it doesn’t mean a lot, or at least it adds little to the meaning of the Constitution’s Article V, Section 7. You could strike it from the verbiage and the Board of Pardons’ powers would be unchanged, he said.

But the term is important in another sense, he said. It gives “operative effect” to former state AG Henry W. Childs’ “statement of purpose,” issued soon after voters approved the 1896 constitutional amendment that led to directly the challenged 1897 statutes.

Childs’ statement said the amendment was intended “to deprive the governor of the power to alone grant pardons and reprieves, which he now enjoys” and to create the Board of Pardons.

That’s why the word “conjunction” still matters, Flaherty said. “That is the language that limited the governor’s formerly unilateral pardon power.”

“But wouldn’t your interpretation, counsel, basically negate the governor’s pardon authority that’s granted by the constitution?” Justice Moore asked. Whereupon Flaherty launched into a discussion about the governor’s constitutionally dispensable vote, already discussed.

 

‘Separate or apart’

In her holding that the unanimity statute is unconstitutional, District Court Judge Nelson also ruled that the governor “has some pardon power or duty separate or apart from the Board of Pardons.”

Early in Wednesday’s arguments, Justice Margaret Chutich seemed to key in on that finding while questioning Flaherty.

“If we apply the common usage of the phrase ‘in conjunction with,’ and determine that the language of Article V, Section 7 joins or unites the governor’s pardon power with the Board of Pardons,” she asked, “how do we reach the conclusion that the pardon power rests solely with the board?”

The question struck Flaherty as odd. “The reason that question is strange,” he said, “is that the governor is mentioned separately from the board in Section 7—but he is, in fact, a member of it.”

He added, “The fact that the Legislature may regulate the board’s powers necessarily gives the Legislature some ability to regulate the pardon power itself.”

“Do you agree that by requiring unanimity in the Board of Pardons, the Legislature has functionally given the judiciary the power to unilaterally stop an exercise of the pardon power?” Justice Anne McKeig asked him.

No, he said. The chief justice is on the board, but doesn’t represent the judiciary there, because the Board of Pardons is an executive branch entity. “So her participating in the pardons board is not a judicial function,” he said.

 

Three reasons to reverse

Peter J. Farrell is an assistant Attorney General representing AG Keith Ellison, who sides with the chief justice’s stance that the statutory requirement is constitutional. He argued that the Supreme Court should reverse the District Court for three reasons:

• The unanimous vote requirement is consistent with the plain text and purpose of the 1896 amendment.
• The 1897 law imposing the unanimous vote requirement is “powerful, contemporaneous evidence” of the constitutional amendment’s meaning.
• The constitutionality of the unanimous vote requirement is reinforced by 124 years of historical practice.

To Farrell, the Constitution’s use of the term “conjunction” is ”unambiguously flexible” in the sense that it’s not expressly defined.

“Is there such a thing is ‘unambiguously flexible?’” Justice Natalie Hudson asked with a laugh. “‘Unambiguously flexible,’ I guess, maybe is a little bit of a funny way to put it,” Farrell replied, “but I do think it captures the spirit of the amendment.”

He said that the best way to understand the word is to think of it as saying that “the governor must act in combination” with the board.

“It gives the legislature the discretion to determine how the board members are going to vote,” Farrell said. “I think that is just the best interpretation of that text. It’s a valid exercise of legislative discretion.”

 

The ‘unfortunate guilty’

To Crowder’s client, there is much more at stake than the meaning of a word in its constitutional context. She petitioned for a pardon from her conviction for first-degree, heat-of-passion manslaughter, after stabbing her husband more than 30 times in 2013. Crowder classified her among the “unfortunate guilty.”

“She suffered unimaginable violence,” Crowder said. “The criminal court [judge] said hers was the most difficult case of her legal career. After conviction, Ms. Shefa served her time and then some. But despite that, her conviction threatens continued detention, deportation, even death.”

Because she killed her husband, Shefa’s supporters have said, she is likely to be murdered by his family when she is deported to Ethiopia. Because of the severity of the crime, a full pardon is the only way to prevent deportation. Walz and Ellison voted to grant her petition. Gildea voted no, vetoing it.

“Despite satisfying the constitutional requirement that he act in conjunction with the board—as the Attorney General has expressly conceded in his briefing and here today—the governor still could not grant Ms. Shefa’s pardon,” Crowder said, “because of the unanimity requirement we challenge.”

Crowder and Landy both agree that the Legislature violated the separation of powers by passing the unanimity requirement more than a century ago.

“That requirement is not in the Constitution,” Crowder said. “By statute, the Legislature has taken the pardon power away from the executive and vested it in a board that it exclusively controls.”

To Crowder, the power of pardon still belongs to the executive, so long as the governor acts in conjunction with the board. And because Ellison voted with him in Shefa’s petition, the governor met that standard, and the pardon should have been granted.

 

Launch-code keys

Hudson seemed skeptical of Shefa’s arguments. She likened the Board of Pardons’ power to what she has seen in spy movies—where two people are given missile launch-code keys, but neither independently has the ability to send the projectile flying without the other.

She expressed skepticism at Crowder’s insistence that the Constitution allows the legislature to impose a “governor-plus-one” voting scheme on the pardons board, but prohibits a “governor-plus-two,” or unanimity requirement.

“This is the consistent understanding of the people at the time,” Crowder said, “that the board would act through a majority.”

Justice Paul Thissen had trouble with that logic, pointing out that in the near-immediate wake of the constitutional amendment’s passage, state legislators—interpreting what voters wanted—passed the unanimity requirement. The governor at the time signed it.

“I mean, those are people in Minnesota,” Thissen said. “And they clearly didn’t think that a unanimous [vote] was prohibited. I just understand how you can make that assertion.”

“The Legislature sometimes gets it wrong,” Crowder replied to the former House Speaker, “with all due respect to legislatures.”

 

‘High bar’

Arguing for the governor, Landy emphasized that the dispute is not about any particular officeholders. “Rather, it’s about the legislature’s intrusion into the executive pardon power, by enacting two statutes that directly conflict with the Constitution,” he said.

Justice G. Barry Anderson, presiding in Gildea’s absence, seemed unsatisfied with the response when he asked Landy how the court could overcome “the high bar” of finding a statute unconstitutional.

Landy said that it is the job of the courts—not lawmakers—to interpret what “in conjunction with” means in a constitutional context. “That’s a bedrock principle that goes all the way back to Marbury v. Madison,” he said.

Anderson seemed unconvinced. “It seems to me that we may not like the choice that the voters made in 1896,” he said. “But they did make a choice.”

Landy wrapped up his argument by requesting that the court affirm the District Court’s ruling and declare that the governor can grant Shefa’s pardon nun pro tunc.

 

Rapid turnaround

Whatever decision the court reaches, it is likely to come quickly. There is pressure to act, both because Shefa’s deportation is apparently imminent, and because the Board of Pardons has not met since last spring.

Its June 21 meeting was canceled. Gildea told the governor that she wouldn’t attend another meeting until the Shefa case clears appeals.

Given the urgency, both Flaherty and Farrell urged the court to issue an order quickly, with a more fulsome and reasoned opinion to follow. Attorneys for Shefa and the governor did not object to that plan.