SAINT PAUL, Minn. (CN) — The Minnesota Supreme Court heard a challenge of the state’s pardon process Wednesday morning, with six of the court’s seven justices deliberating over whether its chief justice should have an effective veto power over pardons.
Minnesota’s current scheme for pardons requires a unanimous vote by a three-person pardon board consisting of the governor, attorney general and Supreme Court chief justice.
Attorneys for respondent Amreya Shefa and Governor Tim Walz said Wednesday morning that that system, implemented in 1897, dilutes the pardon power constitutionally granted to the governor. Attorneys for Chief Justice Lorie Gildea and Attorney General Keith Ellison defended the system, saying that it was consistent with constitutional requirements that the governor consider pardons “in conjunction with” the pardon board.
The debate came as a result of Gildea’s vote against a pardon for Shefa, an Ethiopian woman seeking a pardon for her 2014 second-degree manslaughter conviction in an effort to avoid deportation back to her home country. Ellison and Walz both supported Shefa’s application for a pardon after the completion of her prison sentence in 2019, and Walz’ attorney Barry Landy of Minneapolis firm Ciresi Conlin argued that their 2-1 vote should have been enough.
Shefa was brought to Minnesota to join husband Habibi Tesema in 2013. Following a year of abuse, imprisonment and routine sexual assault, Shefa picked up a knife one night when Tesema attempted to rape her, stabbing him repeatedly and killing him. She was convicted of second-degree manslaughter in 2014, with a finding that the killing was a case of excessive force in self-defense.
Shefa completed her five-year prison sentence in 2019, and is now facing deportation by Immigration and Customs Enforcement. As an HIV-positive Muslim, Shefa has said she fears torture and death should she return to Ethiopia, where Christians are in the majority and HIV is heavily stigmatized.
Shefa’s attorney, Andy Crowder of local firm Blackwell Burke, leaned into his client’s dire circumstances in introducing his case.
“Alexander Hamilton discusses unfortunate guilt in Federalist Paper # 74 because that guilt is the reason clemency exists,” Crowder said. His client’s circumstances, he said, fell squarely under that banner. “Her conviction threatens continued detention, deportation, even death.”
Crowder and Landy both argued that the 1897 statute establishing the unanimous-vote requirement for pardons contravened the 1896 constitutional amendment that established the pardon board and required that the governor work “in conjunction” with the board to grant pardons.
“When unanimity is applied, you can have one member, a wing member of the board, that renders the governor’s vote a nullity,” Crowder said. That situation, he said, removed the governor’s power beyond the scope of what the amendment was initially intended to do.
That amendment’s intent was a central focus of Gildea and Ellison’s case.
“The 1897 law imposing the unanimous vote requirement is powerful contemporaneous evidence of the constitution’s meaning,” Assistant Attorney General Pete Farrell said, arguing for Ellison.
The amendment, he said, was passed with the intent of limiting gubernatorial pardon power, and a similarly-comprised legislature wrote the law with the same intent.
The current system, Farrell said, isn’t mandated by the constitution, but isn’t precluded by it either.
“We think a governor-plus-one scheme would be constitutional, but we think a governor-plus-two scheme is also constitutional,” he said.
Arguing for Gildea, attorney Scott Flaherty of Ohio-based firm Taft Stettinius & Hollister said that the “in conjunction with” language wasn’t what Crowder and Landy said it was.
“That language is not talking about the board’s powers. That language is talking about the statute’s purpose,” he said. “Removing that language doesn’t change the board’s powers…. But that is the language that limited the… governor’s former unilateral pardon power.”
The judges, short Gildea, took both proposed interpretations to task, but sent some of their most cutting questions in the direction of Landy and Crowder.
”Doesn’t that really require us to read words into the constitution, though?” Justice Margaret Chutich asked of Crowder’s contention that the governor should not be subject to a veto on pardons.
Several attorneys also offered responses to Justice Natalie Hudson’s suggestion that pardon power was analogous to nuclear “keys” in an action movie “where both parties have the power to launch the nuclear weapon, but they can’t do it on their own.” Flaherty and Farrell argued that Walz’ “key” was sufficient to satisfy the executive power granted over pardons, while Crowder and Landy argued that requiring all three “keys” rendered that power nearly inaccessible.
Mitchell Hamline School of Law professor David Schultz said the case reflected an emerging ideological divide between Walz and Ellison and Gildea.
“For a governor and an attorney general who are especially concerned about wanting to reform criminal justice processes, especially post-George Floyd, I think this is a very heated matter for them,” he said.
Gildea, an appointee of Republican former Governor Tim Pawlenty, has a history of more conservative takes on criminal justice issues, Schultz said. “I think we’ve got some partisan overlays there. Even though, in theory, the chief justice is supposed to be nonpartisan…. She is less supportive” of people convicted of crimes “than perhaps Governor Walz would like.”
As for Ellison, Schultz speculated that his alignment with Gildea had more to do with his constitutional obligation to defend state laws than it did with his personal politics.
“It probably does not reflect where Keith Ellison may sit personally,” Schultz said. “He’s obligated to uphold current state law.”
Schultz also noted that with Gildea recused from this case, the court’s Democrat-appointed majority is stronger than usual, with Justice Barry Anderson as its only other Republican appointee. “One wonders whether that will be a factor in the case in terms of how they view gubernatorial power and whether the governor winds up prevailing in this case.”
A spokesman for Ellison’s office declined to comment further on the case. Crowder and representatives for Gildea and Walz also did not respond to requests for comment.
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