COLUMN -- When rhetoric stains the Court, it's too much

Wednesday, March 15, 2006


The debate over amending the Minnesota Constitution with a definition of "marriage" has not lacked for exaggerated rhetoric. Sometimes that's all it amounts to — exaggeration. However, when a legislative leader makes a statement that potentially undermines the integrity of the Minnesota Supreme Court, well, that bears investigation.

During a January meeting with Spicer-New London pastors, Senate Majority Leader Dean Johnson, DFL-Willmar, defended his view that because Minnesota has a "stringent" statute limiting marriage to one man and one woman, a Defense of Marriage Amendment is unnecessary. The gathered pastors, on the other hand, contended that court decisions overturning such laws in other states make the amendment necessary.

An honest disagreement, but this particular meeting is significant. On a digital recording, made by a pastor without Johnson's knowledge, Johnson says that although he could make "no guarantee," justices had told him the state Supreme Court would not hear a challenge to the marriage statute.

"Members of the Supreme Court, I know all of them. I've had a number of visits with them about our law. All of them, every one of them," Johnson said. He quoted (by name) a justice as saying "Dean, we all stand for election, too. We are not going to touch it (current law)." He generalized the response of other justices as: "Dean, we're not going to do this. We're not going to do this."

Here's the problem. The coin of the judicial realm is trust. Respect for law begins and ends with public perception that judges, regardless of their personal views, render impartial judgments based on the law. Justices do not pre-judge cases in public. They do not say how they might rule in a specific case. They do not discuss specifics of cases that might come before them — even to Senate majority leaders. To do so is a serious breach of judicial ethics.

I contacted Johnson's office last week, and through his communications director David LaCoursiere, Johnson initially declined to comment or clarify his remarks. LaCoursiere did note that Johnson's quotes from the judges were "probably not an accurate expression" of what they might have said.

On deep background, I talked with sources in the judicial branch, who had heard rumors about Johnson's remarks. While they could not comment on Johnson's claim nor on their positions on the marriage statute, they did characterize Johnson's remarks as "inappropriate," "unethical" and "bizarre."

Court communications director John Kostouros also understood the implications of Johnson's comments. After we talked, he called Johnson's office, talked with LaCoursiere and then e-mailed me the following official statement over the weekend:

"Minnesota Supreme Court justices do not discuss current cases or cases that might come before them," he wrote. "Any suggestion that a justice made a commitment to vote a certain way on a case or issue if it came before them would be a serious ethical breach. We can assure the citizens of Minnesota that no such promise or commitment was made."

Late Monday, LaCoursiere e-mailed a statement from Johnson, clearly stating that he has not at any time "received any promises or commitments regarding any potential judicial cases from any member of the state Supreme Court." His "only contact" with a justice on the same-sex marriage law, he said, was in a chance meeting in the Capitol rotunda, a conversation Johnson characterizes as "more out of friendship" and "very brief."

Contending that his remarks "have been misconstrued," he said, "I will admit my comments to fellow clergy were, at worst, poorly worded.

"To imply that I 'tampered with the Supreme Court for political purposes' is totally unwarranted and completely untrue," he said. "I sincerely apologize if any damage has been done to the integrity of the court resulting from my loosely worded comments to fellow clergy."

One can reasonably argue that Johnson telling pastors he had a "number of visits" with specific judges, one that he quotes by name as saying "We are not going to touch it," referring to the current marriage law, is a little more than a poorly worded statement. And I'm sure amendment proponents will make that argument, but there is a larger lesson.

Sooner or later, social issues devolve from noble intent to political food fights, and feeding the frenzy becomes more important than nourishing the debate. The marriage amendment is at that point. It's time to expose the exaggerated rhetoric on both sides of the issue in open debate on the Senate floor and bring the marriage amendment to a legislative vote.

UPDATE: Audio* of Sen. Dean Johnson's remarks can be found at the Minnesota for Marriage website.

On the tape, Johnson identifies retired Chief Justice Kathleen Blatz as making the comment "Dean, we all stand for election, too. We are not going to touch it (current law)." The Court provided an official response from retired Justice Blatz --

"Senator Johnson said in this morning's paper that he’s never “received any promises or commitments regarding any potential cases from any member of the state Supreme Court” and has apologized if anything he said left that impression. It would have been highly unethical for me as the Chief Justice to comment on a matter that might come before the court, or to give assurances to anyone on how the Court was likely to decide an issue that might come before it. It just never happened."

*Linked via Minnesota Democrats Exposed.