Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Enlarging the State Supreme Court

Over 150 years Minnesota’s Supreme Court has grown from three to seven members while lower courts have grown many-fold. Perhaps the time has come to consider adding justices to Minnesota’s top tribunal.

“Some say there are nine Muses, but they are wrong.”
Plato, No. 36

Minnesota’s 150th birthday, which will be marked with Sesquicentennial celebrations in 2008, provides an opportune time to contemplate a topic that seems to be taboo.  It might pose the rare but proper occasion to consider enlarging the state Supreme Court.

Minnesota’s top tribunal, once occupied by only three judges, now resembles those of most other states, with seven jurists.  The newest member, Christopher Dietzen, will be seated after the first of the year, following his elevation by Governor Pawlenty from the Court of Appeals to replace retiring Justice Samuel Hanson. Although the United States Supreme Court has nine justices, seven judges sit on the top tribunal of the majority of states.

A handful of jurisdictions have five justices, such as North Dakota, South Dakota, Rhode Island, Wyoming, and Vermont. Only a few state high courts, including Alabama, Oklahoma, and Texas, are composed of nine jurists.

Contributing Causes

There are a number of reasons why increasing the membership on the state’s highest tribunal could contribute to the cause of justice in Minnesota. The Court has a large, although somewhat stable, workload. From 2001 through 2005, it received an average of 689 petitions annually for review, ranging from a high of 705 in 2004 to 669 the following year.  During that time, criminal cases averaged 315 per year and civil ones about 374, along with a smattering of other miscellaneous matters.  The number of written decisions also has been fairly constant, ranging from 171 to 196 over a recent three-year span.

Except for cases in a small number of categories—such as workers compensation, first-degree murder, and challenges in certain elections—the state Supreme Court has unfettered discretion in deciding which cases it will hear.  Rule 117 of the Minnesota Rules of Civil Appellate Procedure provides the framework for Supreme Court review; nevertheless, a large number of appellate aspirants feel frustrated by the lack of articulable standards for review.1 The hopes of most appellants—about 90 percent—are dashed, without elaboration, in a single sentence: “Petition for review denied.”

Increasing the number of justices on the Minnesota Supreme Court could allow review of more decisions of the Court of Appeals by the top tribunal.  Expanding the number of jurists from seven to nine would give the top tribunal more resources to hear more cases. However, merely adding additional members might not be enough to increase the Court’s caseload. Structural changes might be called for, too. With nine justices, the Court could provide for review by rotating panels of three to five justices for most cases. In cases of extraordinary importance, the whole bench could preside.

These structural changes could probably expand the number of cases heard by the high court by anywhere from one-third to 50 percent.  This would give litigants a better opportunity to have their cases resolved by the highest court in the state.  It also would allow for the greater development of case law in this state. The Minnesota Court of Appeals, as it occasionally reminds lawyers and litigants, is only an error-correcting tribunal: it does not establish new law, but follows existing law. The appellate court has stated: “[T]he task of extending existing law falls to the Supreme Court or the [L]egislature, but it does not fall to this court.”2

More judges on the state Supreme Court could also encourage greater diversity in that tribunal.  Of the seven current members of the Court, all except Chief Justice Russell Anderson practiced law primarily in the Twin Cities metropolitan area, leaving Greater Minnesota feeling somewhat slighted.  In addition to instilling more geographically balanced representation, increasing the membership of the Court could permit greater diversity in terms of gender, race, ethnicity, religion, and other attributes of minorities that have historically been missing or underrepresented on the bench.

There are, to be sure, some drawbacks to this proposition.  Cost is one drawback.  Adding a couple of justices, along with law clerks and other staff, would probably result in an annual cost increase of $500,000 or more, taking into account salaries, benefits, and other expenses.  A portion of this amount may be made up by raising the filing fee, now $500. If the fees were hiked to, say, $750, and the number of petitions rose by one-third to one-half, the Court could collect anywhere from an additional $55,000 to $85,000. Of course, the potential exists that raising the fees may reduce the number of petitions, resulting in a smaller gain, a wash, or even a net loss.

Cost considerations are relatively slight compared to the intangible value of having more litigants able to have their cases heard by the high court.  The budgetary crisis that gripped the judiciary in years past seems to have subsided.  Indeed, the Legislature has had other potential pet projects—such as building of the sports stadiums—on its agenda, which suggests that discretionary dollars are available.

Expanding the membership of the Court would require legislation and, perhaps, even constitutional modification.  Unlike the United States Supreme Court, whose membership is governed by statute,3the numerical composition of the state Supreme Court is inscribed in the state constitution. Article 6, §2 of the Minnesota Constitution mandates a high court composed of at least seven and no “more than” nine justices, as may be prescribed by the Legislature, which currently has fixed the number at seven under Minn. Stat. §480.01.  This is more than double the trio of jurists who sat on the high court after statehood in 1858.  Hiking membership in the Court to nine would not require a constitutional amendment, but only a statute passed by a majority of both House and Senate and approved by the governor.  The extreme stretching of the number above nine would require amending the Minnesota Constitution by majority votes in each legislative chamber and consent of a majority of voters.4

Stable Seven

The number of justices on the Court has been stable at seven since 1919.  Meanwhile, other tribunals have expanded.  In Hennepin County, for instance, the number of judges has grown by about 250 percent from 24 to 61 in the past two decades.  The Court of Appeals, when originally created in the fall of 1983, had only six judges; another half-dozen were added six months later.5  Since then, the number has increased to 19, with three added this year, and the efforts of these jurists are supplemented by the services of seven retired jurists available for assignment.

Boosting the number of justices on the Supreme Court would enhance the power of the governor, whoever might be in office at the time the vacancies arise. However, loosened restrictions on judicial campaigns could also give voters more say in the process, a prospect that is viewed to be both good and bad by differing factions.6

The notion of expanding the number of members of the state Supreme Court has not exactly created a clamor in the state.  There is a natural hesitancy to tamper with established institutions. But progress and justice need not be static.  Enlarging the state Supreme Court may be a topic no longer taboo.

It is a subject that ought not to be greeted with the response, “It’s Greek to me.” After all, Plato observed in No. 36 that there are not just nine Muses; there actually are “ten.”

See Tanick, “The Guessing Game of Petitions for Review,” 62 Bench & Bar 4 (April, 2005), pp. 30-31.

Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987).

See 28 U.S.C. §1.

See Tanick, “Amending the Constitution: History and Hysteria,” 64 Bench & Bar 2 (Feb. 2007), pp. 21-24.

See Minn. Stat. §480A.01.

6 See Republican Party v. White, 536 U.S. 765 (2002). See also Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005).

MARSHALL H. TANICK is an attorney with the law firm of Mansfield, Tanick & Cohen, PA, in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace-related matters.  He thanks Adam Brown, a former law clerk with the firm and clerk for the Minnesota Court of Appeals, for his assistance on this article.

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