The University of Minnesota and the Supreme Court: too close for comfort?

The University of Minnesota has two cases in the state Supreme Court this year — for both, more than half of the justices won’t have a say because of University-related conflicts of interest.

Attorney Jordan Kushner argues before the Minnesota Supreme Court on behalf of his client, former University student Amanda Tatro, on Wednesday at the capitol.  Tatro sued the University over disciplinary actions the University took after she posted comments on Facebook the that administrators found threatening.

Mark Vancleave, Daily File Photo

Attorney Jordan Kushner argues before the Minnesota Supreme Court on behalf of his client, former University student Amanda Tatro, on Wednesday at the capitol. Tatro sued the University over disciplinary actions the University took after she posted comments on Facebook the that administrators found threatening.

Katherine Lymn

When the University of Minnesota goes to the state’s highest court, less than half of the justices sit on the bench.

There’s a lot of overlap between the University of Minnesota and the state Supreme Court — a sticky situation that can delay cases and cost the state money.

As a land-grant school and a frequent litigator, the University is in an awkward spot with the court. Recently, four of the seven justices have stepped back from the University’s cases due to ties to the school.

Current justices include a former University lawyer, a former member on the Board of Regents and two who have taught at the Law School — all four have ties that could make them biased when hearing University cases.

The University hasn’t argued a case in front of the state Supreme Court since 2004 — now it’s arguing two, which will both be decided later this year.

One case deals with former student Amanda Tatro, who claims the school violated her First Amendment rights for its punishment for posts she made on Facebook. Both sides have argued this case and await a decision — after repeating the oral arguments because one justice recused himself late in the game.

The other suit comes from Jimmy Williams, who says head basketball coach Tubby Smith promised him a job in 2007 and then reneged. After a court last year upheld a $1 million award in Williams’ favor, the University appealed. That case will be argued May 3.

Mark Rotenberg, lead lawyer for the University, said that if so many justices stepping back — or “recusing” themselves — becomes routine, it would put the school in a “very unusual posture.”

“Who’s going to review our petitions?”

The U in Minnesota courts

The University has a presence in courthouses throughout the state — judges at all levels have attended, taught at or sat on committees for the school.

The four justices who’ve recused themselves from Tatro and Williams’ cases have strong connections. Chief Justice Lorie Gildea was a lawyer for the University, so she could’ve learned the school’s litigation strategies. Alan Page was on the Board of Regents from 1989 to 1993. David Stras was a faculty member of the University’s Law School for seven years.

Paul Anderson, who was slower to recuse himself and likely did so because Williams’ lawyer questioned his impartiality in an article, donates money to the Law School and teaches there occasionally.

Anderson made clear in his recusal notice that he could be impartial — “on this point I have never wavered,” he wrote. But he acknowledged he might appear biased.

“I regret that my willingness to donate personal funds to the law school and to volunteer my time to annually teach one seminar may be construed to have created such a perception,” he wrote.

Justices don’t need to — and often don’t — explain why they are recusing themselves from a case, making it hard to quantify the reasons behind them.

If explanation were required, some say judges might not recuse themselves to avoid disclosing private or embarrassing information, Cynthia Gray of the American Judicature Society said in an email.

Keith Swisher, a judicial ethics scholar and associate professor at the Phoenix School of Law, said since state supreme court justices are often of the “upper echelon” of the practicing bar, it doesn’t surprise him that they would’ve also been on the Board of Regents or would donate to the Law School.

But once they’re on the bench, that can create “appearance issues,” he said.

The fact that a certain party might routinely be in front of them should guide justices’ behavior. They shouldn’t do something that causes them to recuse themselves whenever that party comes to court.

Repeated recusals can burden the court, Swisher said.

“It does mean that someone has to step in, and that might delay the process in addition to cost[ing] money.”

Normally, judges come under fire for not recusing themselves when people say they should. But these two cases have raised the question of how sensitive the justices should be about potential bias.

Law School Dean David Wippman said that like at most law schools, students benefit from the judges’ involvement in the school. It’s a chance for students to hear first-hand how judges tackle issues in the real world, he said.

Minnesota’s judicial ethics code lays out situations in which judges should recuse themselves. Previous involvement in the case as a lawyer, judge or witness disqualifies a judge. So would any economic interest a judge or his or her family could have in the case.

About 50 percent of Minnesota’s judges got their undergraduate degree, law degree or both from the University, according to a Minnesota Daily analysis of judge biographies. About 15 percent have non-degree ties to the school, like serving as a mock trial judge, adjunct teaching or serving on the University’s alumni association.

Roughly 40 percent of the judges on the Court of Appeals, specifically, got a degree from the University, and a third have been involved with the school in other ways.

Handling recusals

The Minnesota Supreme Court gets to pick which cases it hears, and it agrees to review about one in eight.

Generally, three justices must agree. But if four of the justices recuse themselves from a case involving the University, the school might have to convince all three remaining to hear a case.

That concerns Rotenberg.

“It’s just a simple arithmetic thing,” he said. It’s harder to convince three out of three to hear a case than three out of the wider pool of seven.

To mitigate that, the court can bring on lower court judges or retired state Supreme Court justices to increase the voting pool, Rotenberg said.

Whether to bring on extra judges and who they are is up to the chief justice, or, if she recuses herself as well, the next-longest-serving justice.

When Anderson recused himself from the Williams case, for example, the court had already agreed to hear the petition from the University to reconsider a prior court’s ruling. After the recusal, the court appointed retired Supreme Court justice Esther Tomljanovich as a replacement. She and the remaining justices reconsidered the case and still decided to hear it.

The court gave the University and Tatro the option to reargue that case since Anderson recused himself after oral arguments had already happened. Tatro’s lawyer took the chance to argue the case before the justices again.

Before the case was reargued last week, Rotenberg said his argument wouldn’t change since the University’s position hasn’t changed. He said he planned to “answer the judges’ questions all over again.”

The money factor

There can also be a cost to the state when judges back away from cases.

If a former judge or justice comes out of retirement to replace a recused justice, the retiree gets paid handsomely. Minnesota Supreme Court justices already make a $137,601 salary. The chief justice makes about $14,000 more.

While two of the three judges added to the bench for the University’s cases are active district judges, Tomljanovich, who’s helping with both, retired in 1998.

She’ll get a $96,320.70 salary pro-rated for how many days she works — 70 percent of the pay of whom she’s replacing.

According to state pension records, Tomjlanovich already gets $82,826.40 a year.

In other states, some retired judges will help on cases for free, out of public service, Swisher said.

An old but current issue

A man named Kenesaw Mountain Landis and a Chicago baseball scandal shaped judicial ethics.

After news broke that the Chicago White Sox were bribed to let the Cincinnati Reds win the 1919 World Series, the league needed to do damage control.

It appointed Landis — a federal judge — as the first commissioner of baseball to clean up the league’s image. But some cried foul at his dual roles and double paycheck. The American Bar Association censured Landis, he quit his judgeship a year later and the profession got its first Canons of Judicial Ethics.

But the idea of recusals has been present in some form or another for almost a millennium, if not longer. In early Jewish law, a judge couldn’t be involved in cases where a party was a friend, kinsman or someone he personally didn’t like.

In the centuries since, recusals have made news when, like with the University, too many judges have ties to a case.

New Orleans is another headquarter of recusal madness. Like the University, it’s a place where litigants and judges can be too close for ethical comfort. Federal appellate judges for the district including the city had all sorts of ties to the 2010 British Petroleum oil spill in cases of homeowners and fishermen suing the oil and rig companies for damages.

Experts speculated judges owned stocks in the companies being sued, had property in a region that would benefit if those companies lost or had relatives working on the cleanup, National Public Radio reported.