The Minnesota Supreme Court on Wednesday was asked to reconsider how a triumvirate of state leaders approves pardon requests — a dispute calling into question a 125-year-old practice while grinding the Board of Pardons' work to a halt so far this year.
Gov. Tim Walz and Supreme Court Chief Justice Lorie Skjerven Gildea— who serve on the board along with Attorney General Keith Ellison — are at odds over whether the governor needs just one member to side with him to grant reprieves or whether the longstanding unanimous vote requirement should stand.
"The power for the governor to grant pardons in conjunction with the board has been prevented by a unanimous vote requirement that is found nowhere in the Constitution," said Barry Landy, an attorney for Walz, during an hour of oral arguments on Wednesday.
The governor has made pardon reform a top criminal justice policy priority since taking office in 2019. The Supreme Court is considering whether to let an April ruling in Ramsey County determining that Minnesota's law governing the state's pardon board was unconstitutional because it does not explain how power should be divided on the board.
The lawsuit was filed by a woman who unsuccessfully sought a pardon that year for a manslaughter sentence she served for killing her husband after she said he stabbed and raped her. Amreya Shefa's attorney, Andy Crowder, said she fears she will be deported to Ethiopia and killed by her husband's family if she is not granted a pardon.
"When a law enacted by the Legislature and applied by the judiciary works in an unfair result in a case we need easy access to executive mercy so that those unfortunate guilty may know justice," Crowder told the court. "Shefa is one of those unfortunate guilty. She suffered unimaginable violence."
Gildea recused herself from the case. The legal uncertainty also prompted her in June to postpone the board's proceedings ahead of the first of two required meetings this year until Shefa's case was resolved. That led to one of the first public spats between a governor and chief justice in recent memory when Walz replied with a sharply worded rebuke in which he called her decision "unfounded."
Scott Flaherty, an attorney representing Gildea, argued Wednesday that the governor must act jointly with the board and that it would be up to the Legislature to pass a law allowing pardon approvals via 2-1 votes. The governor, Flaherty added, is a member of a board that the Legislature may regulate.
Pete Farrell, an attorney representing Ellison in the case, also asked the court to reverse the Ramsey County court's decision because he said that the unanimous vote requirement was a "valid exercise of the Legislature's discretion."
"It has been followed by dozens of governors, attorneys general and chief justices," Farrell said. "It has been undisturbed by the legislature by over 124 years despite legislative activity with respect to the pardon statutes."
Recent bill proposals to change the pardon board's voting requirements have failed to gain traction in the divided Minnesota Legislature.
On Wednesday, the justices reserved much of their most skeptical line of questioning for attorneys representing Walz and Shefa. They asked Crowder to identify what constitutional language pointed to "governor-plus-one" and not "governor-plus-two" — or unanimous — voting requirements on pardon applications.
"Doesn't that really require us to read words into the constitution?" asked Justice Margaret Chutich.
Justice Paul Thissen asked how language in the statute regarding the governor's pardon power signaled that he needed just one and not two of the other members to vote with him. And Justice Natalie Hudson added that she did not see anything in the constitution that either prohibits or mandates unanimity.
Crowder maintained that the unanimous vote requirement violated language empowering the governor to have pardon power "in conjunction with the board," because he was working with the board when he voted with Ellison to grant Shefa's 2019 request. Walz's vote, Crowder argued, is the only one on the board that is "indispensable."
Justice G. Barry Andersonwas among the justices most critical of whether such arguments cleared the high bar necessary to deem a statute unconstitutional.
"If the Legislature or in the constitutional amendment the intention had been [that] the governor's vote was indispensable it would've said it in the constitutional amendment or it would've said it in the statute," Anderson said. "It doesn't say it in either place. We have to get there by implication."
All parties agreed to have the Supreme Court first issue a decision on the case with a more detailed, written opinion to follow at a later date. No timeline was given for when the court would rule, but Anderson said an opinion would arrive "in due course."