When it finally arrived, the Court’s much-anticipated opinion in the jury trial waiver case, State v. Lessley, was eclipsed by the news about Justice Magnuson’s departure. This bit of timing seems oddly fitting, considering that Lessley is remarkable not simply for the significance of its holding, but also for how bollixed up the case managed to get.
In Lessley, a divided Court held in an opinion authored by Justice Paul Anderson that Minnesota’s Constitution does not require the consent of the state before a defendant may waive a jury trial in a criminal case [see comment by Ben Butler]. Justices Gildea and Dietzen were the dissenters.
Convolution #1: The procedural posture
Tyeric Lessley is awaiting trial in Hennepin County on charges of second degree murder for an incident that occurred two years ago, in March of 2008. The lede from a Star Tribune article around that time probably conveys the facts adequately for our purposes: “Tyeric Lessley believed it was life or death.” During the pretrial litigation, the trial judge questioned the state’s evidence of intent and, among other things, opined that the case involved “idiocy” and “a bunch of drunkards.” On the scheduled day of trial, Lessley waived his right to a jury trial. The state asked the trial judge to recuse himself on grounds of bias. When the trial judge declined, the state asked the chief judge of the district to remove the trial judge for cause. The chief judge also declined. The state next asked the trial judge to deny Lessley’s waiver of the jury. The court denied this motion. At the moment when the state was preparing to call its first witness, the Hennepin County Attorney entered the courtroom and requested that the proceedings be stayed so that the state could seek appellate review. The trial judge vascillated a bit, but wound up denying the stay, ruling that the state had failed to show that the denial of its motions would critically impact the outcome of the case per Minn.R.Crim.P. 28.04.
The state filed a pretrial notice of appeal with the court of appeals. That court eventually dismissed the state’s appeal on critical impact grounds.
The Supreme Court granted the state’s petition for review. There was a first round of briefing. Oral arguments were held on May 5, 2009. The Court then ordered re-briefing on the question whether the Minnesota Constitution requires the consent of the state for waiver of a jury trial in a criminal case. The County Attorneys Association, State Public Defender and American Civil Liberties Union of Minnesota all weighed in as amici. In the meantime, Lessley’s aunt complained to the press that the appeal was taking so long that an episode of “First 48” devoted to the case was now being shown in re-runs.
Convolution #2: Justiciability
In its opinion, the Court dispatched with the judge removal issue right away. Citing State v. Burrell, the case from two years ago involving the last public dust-up between the Hennepin County attorney’s office and a member of the Hennepin County bench, the Court held that the state needed to challenge the denial of its removal motion with a writ of prohibition, rather than in an appeal.
Burrell appears to have also been a factor in the troubling question of the justiciability of the jury waiver issue. On appeal, the state backed away from claiming that the trial judge was biased. Assistant Hennepin County Attorney Patrick Diamond explained at the oral arguments that the state recognized it would not be able to establish bias under Burrell. With the pointed, particular vocabulary of bias unavailable to it, the state was forced to make its critical impact case in terms like these: having the judge serve as fact-finder “would undermine public confidence in the integrity and fairness of the proceedings.” Both trial and appellate courts had deemed this an insufficient demonstration of critical impact.
It appears, however, that the Justices of the Supreme Court–all of them–wanted to reach the merits (the dissenters stopped short of the constitutional issue, but moved beyond the threshold issue of justiciability). In order to get there, the Court was obliged to make this leap:
“Here, the facts and circumstances of the case and the arguments made by the parties do not present an issue that is readily subject to analysis under the critical-impact rule. Therefore, we decline to decide whether the State’s pretrial appeal of Lessley’s jury-trial waiver meets the critical-impact rule. Instead, we choose to consider the State’s appeal under our inherent authority to accept an appeal in the interests of justice. See In re Welfare of J.R., Jr., 655 N.W.2d 1, 3-4 (Minn. 2003) (explaining that the court invokes inherent authority in exceptional cases). We conclude that this case is one of those exceptional cases where we should invoke our inherent authority. We conclude that it is in the interest of justice for us to consider the State’s appeal because the State raises a critical constitutional issue that is capable of repetition yet evading review in the future. [FN 5][FN 5 text:] The dissent concludes that we should resolve this case without reaching the constitutional question it presents. We did not ask the parties to file supplemental briefs on the question of whether the Minnesota Constitution requres the consent of both the defendant and the State for waiver of a jury trial in a criminal case with the purpose of ignoring the parties’ supplemental briefs and those of amici curiae. The State has raised a critical constitutional issue that is capable of repetition yet evading review in the future, and therefore it is important for us to address this issue.”
The Court’s rationale for its assertion of inherent authority is, well, surprising. In re Welfare of J.R. only stands for the proposition that the Court can “invoke inherent authority in exceptional cases” if you ignore the facts of that case and truncate the actual holding. In J.R., a parent appealing an adverse decision in a TPR case blew the deadline for serving the guardian ad litem with a notice of appeal. She entreated the Supreme Court to permit her appeal to go forward. The J.R. Court observed: “[I]n a limited number of other cases we have recognized our inherent authority to take an appeal in the interest of justice even when the filing or service requirements set forth in a rule or statute have not been met.” The Court then explained, rather painstakingly, the types of extenuating circumstances under which it has in “rare” past cases “relied on our inherent authority to allow an untimely appeal to go forward.” (Those circumstances did not extend to J.R.’s mother; the dismissal of her appeal was upheld.) J.R. is a circumscribed, parsimonious opinion; it does nothing like what the Lessley majority says it does.
The Court’s reliance on a “capable of repetition but evading review” rationale is also forced. This is the specific language of mootness doctrine, which, of course, is an exception to the U.S. Constitution’s Article III “case and controversy” requirement. The issues in Lessley are not moot, at least not as that concept is traditionally understood. The Court provides no citation of authority for its invocation of this language and it is hard to understand how it could, since there is no free-standing “capable of repetition but evading review” exception to jurisdictional limitations (i.e., one untethered to mootness doctrine), not even when a case presents “critical constitutional issues.” With that said, is the jury trial waiver issue in Lessley literally one that is capable of repetition but evading review? Evading, maybe, but probably not avoiding altogether; it is not difficult to imagine the circumstances under which the issue might one day reach the Court in the form of a certified question. Justice Anderson’s comments make clear, however, that the Court was not disposed to wait for that day. As he said, the Court did not put all those people to the trouble of filing briefs for nothing.
As compared to the Court’s expansive invocation of inherent authority, the majority’s analysis of the merits seems relatively straightforward. Article I, section 4 of the Minnesota Constitution includes this sentence: “A jury trial may be waived by the parties in all cases in the manner prescribed by law.” The remainder of article I, section 4 clearly pertains to civil cases. There is a separate constitutional provision, article I, section 6, that provides specifically for criminal cases. The question for the Court was whether the above quoted sentence from section 4 applies to both civil and criminal cases, or just to civil cases. The Court held that it applies only to civil cases.
The Court evaluated a number of considerations in arriving at this conclusion. It examined section 4’s larger context, with its emphasis on civil cases. It dwelled on the fact that article I, section 4 is contained in the constitution’s bill of rights, the portion of the document that reserves rights to individuals and protects them from improper exercise of government power. It examined case law going back 150 years. The most problematic of the cases was Gaulke v. State from 1969, which managed to come down on both sides of the jury waiver issue in a lengthy passage that the Gaulke Court itself labelled as “dictum.” The Lessley majority and the dissent traded dense footnotes on the meaning of Gaulke. Next, the Court noted that Minnesota has had statutory provisions or procedural rules governing a defendant’s waiver of a jury for 75 years and none of them has ever made the defendant’s waiver subject to the consent of the state. Following that, the Court examined the extent to which the framers’ intent could be gleaned from the records of Minnesota’s constitutional convention debates of 1857-58, and concluded that it was not very much. Finally, the Court noted that “the State and amicus Minnesota County Attorneys Association propound a number of essentially policy-based arguments for why we should read article I, section 4 to make a criminal defendant’s jury-trial waiver subject to the consent of the State” — and then declined to consider them.
Citing Minn.R.Crim.P. 26.01 and canons of judicial restraint, Justice Gildea, writing for the dissenters, maintained that the case should be resolved on abuse of discretion grounds without reaching the constitutional issue (about which she declared herself undecided, although she could not resist turning a raised eyebrow in that direction). She believed that the district court abused its discretion in granting the defendant’s jury waiver. The trial court, she said, had ruled “reflexive[ly]” on the defendant’s motion. The court had been so openly critical of the state’s case that it should have considered the state’s position on Lessley’s jury waiver request. To grant Lessley’s request, she wrote, “risks undermining the public’s trust and confidence in our judicial system.”
1. The institutional arguments on either side of the jury waiver consent issue are well staked-out. The prosecutors believe that, because they lack the ability to object, defense lawyers are given carte blanche to try their cases to judges whom they perceive to be sympathetic. The defense bar fears a rule that would give the state veto power any time it decides that a given judge should not sit as the fact-finder. Lessley puts the matter to rest but it probably has not changed anyone’s mind.
2. Based on the sharp tone (at points) of both opinions, it would appear that there are strongly held views on the Court as well on the jury waiver question. Because, however, the majority declined to discuss “policy,” one has the sense that the issue was not truly met. Why the unwillingness to go there? Lessley is the first criminal case this term in which Justice Magnuson has not voted with Justices Gildea and Dietzen; it is only the second criminal case in which Justice Barry Anderson has not voted with them. Is this the opinion that was necessary in order to hold this new grouping of majority Justices together?
3. I found Lessley challenging, because of the way the Court stretches its own precedent to allow it to decide the case, and because of its stalwart avoidance of any real world discussion of either the removal or the waiver issues. The majority opinion is alternately porous and opaque. I would not have wanted the Court to avoid deciding the case, only to have been more direct in doing so, i.e., acknowledging that its invocation of inherent authority in these circumstances takes that doctrine to a place it hasn’t been before.
4. Anyone catch this Adam Liptak piece in the New York Times awhile back about the irrelevance of law reviews to judicial decision making? The majority opinion in Lessley cites to six separate law review articles. Good day for the academy.