A 124-year-old standard vesting Minnesota’s pardon power with unanimous rulings from a three-person board now rests with the state Supreme Court, which heard arguments Wednesday for leaving it as is or allowing split decisions.
The ruling, which justices suggested would come soon, will determine if the governor needs to have the support of both the attorney general and the chief justice to erase a conviction from a person’s record.
When Minnesota became a state, the first constitution adopted in 1857 gave the governor sole power over pardons. But that changed in 1896 when voters approved an amendment that created the Board of Pardons.
The amendment itself didn’t address whether the board had to be unanimous, but enacting language approved by the Legislature a year later set that condition. And so it stood through time.
“It has been followed by dozens of governors, attorney generals and chief justices. It has been undisturbed by the Legislature for over 124 years,” attorney Peter Farrell told justices as he urged them to keep it that way.
Farrell represents DFL Attorney General Keith Ellison, who along with Chief Justice Lorie Gildea is resisting a new interpretation.
“The states are not wedded to the federal model of executive clemency. Lots of states have taken lots of different approaches,” Farrell said. “And what Minnesotans did when they amended their constitution is take power away from their governor and say, ‘You have to work with these two other board members before a pardon can be issued.’”
The high court is giving the pardon authority a fresh look after a lower court ruled the law to be unconstitutional because any of the three members of the pardon board has veto power.
And the lawsuit that led to that ruling contends the governor has special authority, so his vote along with one other should carry the day.
Justice Natalie Hudson tried to draw an analogy while framing questions during oral arguments.
“You know you think of some of the spy movies where both parties have keys to launch the nuclear weapons. But neither one can launch the weapon on their own. They’ve got to work together,” Hudson said. “One person has a key, the other person has a key. It seems to me that kind of interpretation might be at work here such that the governor has a key, the pardon board has a key. Neither one is sufficient in and of itself.”
The question is how many keys must be turned simultaneously.
Attorney Andrew Crowder, who is arguing to rework the traditional standard, leaned into the metaphor.
“There’s not three keys. Not everybody has to have a key on the board. So the governor has a key and the other two members have a key,” Crowder said. “And so long as one of them puts the key in we can launch.”
Crowder represents Amreya Shefa. She was convicted in the stabbing death of her husband whom she accused of repeated sexual abuse.
“She suffered unimaginable violence. The criminal court says hers was the most difficult case of her legal career,” he told the court. “After conviction, Shefa served her time and then some. But despite that, her conviction threatens continued detention, deportation, even death.”
Shefa was released from prison in 2019 and now faces deportation to Ethiopia, where she fears she’ll be killed out of revenge.
Last year, her application for a pardon was turned back on a 2-1 vote with DFL Gov. Tim Walz and Ellison in favor and Gildea opposed.
Shefa filed a lawsuit challenging the pardon process. Walz supported the lawsuit, and they prevailed in July.
Walz attorney Barry Landy said during oral arguments that the governor retains special authority in the case of clemency.
“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,” Landy said.
But Ramsey County District Court Judge Laura Nelson stopped short of ordering a pardon for Shefa ahead of this appeal.
Justice G. Barry Anderson presided over arguments because Gildea is not taking part in deciding it. He expressed skepticism.
“If the Legislature or in the constitutional amendment, the intention had been that the governor’s vote is indispensable it would have said it in the constitutional amendment or said it in the statute,” Anderson said. “It doesn’t say it in either place. We have to get there by implication.”
The six justices who will have the ultimate say hinted that they would issue a prompt ruling even if the opinion spelling out the court’s rationale takes longer to write.
That’s because the pardon board typically meets in the fall and its members need to know what standard prevails.
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