This week’s Sounding Board (left to right): Brian Johnson, Carlos Mariani, Nick Zerwas, Mike Freiberg, Dennis Smith
This week’s topics: AG’s rewrite request; equal protections; Picasso discovery
Welcome to Session/Law Sound-off, the weekly current events quiz where we approach smart folks from across the political spectrum and they tell us what’s on their minds. Their views are entirely their own.
Query 1: AG Keith Ellison has written to Judge Peter Cahill asking for a rewrite of his Derek Chauvin sentencing memo. Ellison says the way that the judge dealt with children’s presence at the crime scene as an aggravating factor was dismissive, could add to the kids’ trauma and might contribute to “adultification” of the Black girls involved. Do you think Cahill should oblige?
Brian Johnson, GOP House member, ex-law enforcement officer: No, he should not. Cahill is very intelligent and knows what he’s doing. It’s almost like Ellison is trying to argue an appeal before an appeal has happened.
Carlos Mariani, DFL House Public Safety chair: Yeah, I think he should. What I believe Keith is talking about is the normalizing of a mindset that speaks to two issues. There are a lot of written treatises on how African-Americans are perceived in our society and how that’s been constructed in a way that dehumanizes and objectifies them. This is a deep, deep issue about how we’ve been contaminated by racism. So we need to be very intentional about combating the “normal way” in which we perceive Black lives in our society.
The second thing speaks to this, as well. There is an attempt to normalize that a peace officer’s word is centered on the peace officer, him- or herself. The fact that Chauvin didn’t force the little girl to be there is irrelevant. He is a public agent and he is always “on” as a public agent, so therefore he should always behave in a way that respects humanity. That should be the norm. I think that’s the way the judge should look at [Ellison’s letter]—as an offer to establish a more humanistic norm on both of those issues.
Nick Zerwas, lobbyist, former GOP House member: I would give unbelievable deference to Judge Cahill in this case. I think most parties would agree how well he conducted himself, that courtroom and the entire process, through the unbelievably trying circumstances of the trial and the broadcast of the trial. I think he should be given an unbelievably wide berth and due deference for how he arrived at his sentencing. I would not expect him to be compelled to revise his sentencing memo.
Mike Freiberg, attorney, DFL House Preventative Health Policy committee chair: It certainly can’t hurt to ask. I mean, I haven’t read Judge Cahill’s memo, so I can’t really speak to how dismissive it is. But taking what the Attorney General said at face value, it seems like a reasonable request.
Dennis Smith, attorney, former GOP House member: No. Judge Cahill did a great job with this trial and his very long description of his decision should stand. Considerable effort was put into that, and thought. I wouldn’t recommend any modifications.
[Editor’s note: Smith recently announced that he is a GOP candidate running as a Republican for Attorney General in 2022. For the moment, until the race starts to heat up and becomes more publicly competitive, we’ve decided it’s OK temporarily to keep him on the Sounding Board.]
Query 2: The Court of Appeals has rejected a rural Minnesota restaurant’s claim that the governor’s COVID-19 closure order violated its equal protections because eateries on Indian reservations were exempt—and packed. The court leaned on U.S. Supreme Court case law saying such preferential treatment of sovereign tribes and their members doesn’t violate the constitution. What’s your reaction?
Johnson: I was disappointed that the tribes didn’t have to follow the same rules. But because they are technically sovereign entities, the state has limited authority over what they can actually tell the tribes they can do. I wish everybody would have been treated the same, but that’s what the governor did and that’s what the courts decided.
Mariani: I support the governor’s actions and interpretation. I think all this speaks to the need for Minnesotans to really wrap their minds around the issue of sovereignty, to understand it. The governor has no more right to dictate to Wisconsin than he does to Leech Lake. And that’s the way to think about it.
Zerwas: Quite frankly, I’m not surprised. The sovereign nation status of the federally recognized tribes in Minnesota is well documented over decades of litigation. I think this is just another example of the State of Minnesota publicly recognizing what it shamefully failed to recognize for hundreds of years—the sovereignty and independence of the tribal nations.
Freiberg: The result seems reasonable. Tribes are sovereign entities and should be given deference as such. Also, the purpose of the Equal Protection Clause is meant to prevent discrimination based on protected classes such as race, gender or nationality. I don’t think the type of land a restaurant is located on is really a protected class under the Equal Protection Clause.
Smith: I appreciate this lawsuit coming forward, because the governor’s COVID powers frustrated many and brought many into gray areas of the law—and some would say illegal areas of application of the law. But with our tribes being sovereign nations, I am in agreement with the Court of Appeals in this particular case.