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

‘This is one of the best careers in the legal business anywhere’

Justice G. Barry Anderson of the Minnesota Supreme Court

An interview with Justice G. Barry Anderson of the Minnesota Supreme Court

Justice G. Barry Anderson was appointed to the Minnesota Supreme Court in 2004. Prior to joining the Supreme Court, he was a judge on the Minnesota Court of Appeals, to which he was appointed in 1998. Before becoming a judge, Justice Anderson had a general law practice with a focus on civil litigation and served as city attorney for the City of Hutchinson.

Including his time on the Court of Appeals and Supreme Court, Justice Anderson has nearly 40 years of experience, a record of public service, and a passion for the law. We recently discussed his time on the Court, the administrative responsibilities that come with being a justice, and his prediction on whether the Vikings will ever win a Super Bowl.

Jon Schmidt: In which of your prior jobs do you feel you learned the most about your decision-making abilities? 

Justice G. Barry Anderson: Does this include my first job as a handyman at the Cliff Keyes Motel in Mankato? I survived a week there before the owner correctly decided there was nothing “handy” about me and suggested I move on to other summer employment. The 11 years I spent representing the City of Hutchinson as one of my clients in private practice were instrumental in so many ways. There were lots of complicated, fascinating legal issues, lots of competing interests, a collegial and informed staff, but, ultimately, a decision had to be made. Admiring the problem forever was not an option.

Schmidt: What do you like most about your job? And what do you like least about your job? 

Justice Anderson: The Court has a strong collegial atmosphere, an important quality in dealing with difficult issues. This is one of the best careers in the legal business anywhere; I don’t have any complaints.

Schmidt: You wrote a book review column for the Hutchinson Leader for a number of years. Do you have any book recommendations? 

Justice Anderson: I’m currently reading Professor McCloskey’s wonderful book on economic history, Bourgeois Equality, and Ron Chernow’s terrific biography of Ulysses S. Grant, entitled, cleverly, Grant. Two books about the founding era that I very much like are the late Pauline Maier’s American Scripture: The Making of the Declaration of Independence and Yuval Levin’s The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left.

Schmidt: Besides being a justice on the Minnesota Supreme Court and a judge on the court of appeals, what was the job that you found to be the most fun? 

Justice Anderson: It has been a wonderful experience to serve on both courts. This a great opportunity for me to put a plug in for the court of appeals. The Minnesota Court of Appeals is a crown jewel among intermediate appellate courts around the country. I learned a great deal in my six years on the court of appeals from terrific colleagues and staff. 

Schmidt: When you were appointed to the Supreme Court, a reporter asked you about your approach, and you noted that you tend towards “judicial restraint.” But you added: “We’re going to have to wait and see how decisions turn out and how time passes, and what I have to say about issues from time to time as those issues are shaped by other opinions, the opinions of my colleagues, and other published decisions.” As time has now passed, how would you describe your approach today? 

Justice Anderson: That’s quite the word salad I delivered there, wasn’t it? That question is probably better addressed by an academic with nothing else useful to do who has read everything I’ve written over 14 years. That said, I do like the formulation that Chief Justice Roberts uses of “judicial modesty.” We have only the case before us, and the arguments the parties in that case (plus any amici, of course) chose to make. The further afield we wander, the more likely we are to encounter difficulty. But the problem with attaching labels to justices, or assigning justices to specific categories, is that we are charged with the duty of deciding cases. And any particular case, with particular facts and arguments, might or might not fit into one of those neatly labelled categories. 

Schmidt: You have served with 16 different justices. When a colleague leaves and a new associate justice is added, how does that affect your approach to the job or to the conference discussions? 

Justice Anderson: Justice Page used to observe that every time a new member joined the Court, it was a new Court. There is much wisdom in that observation. My approach to the work of the Court doesn’t change, but it is important to remember that there is neither a training manual nor a formal orientation program for new members. We all pitch in and help the new member at every available opportunity. The Court has had lots of practice at this over the last five years or so.

Schmidt: You are the longest-tenured justice on the current Court. What are the biggest changes that you have observed in your 14 years? 

Justice Anderson: E-court. When I joined the Court in 2004, we were still working in a paper environment. If you wanted to take your special term materials home to study, that meant lugging around 500 to 1000 pages of paper (and maybe more). Now all of that material is on your laptop or available via a link to the court network. This doesn’t mean paper has vanished, but that is the trend. I suspect justices who join the Court in the years ahead will be working almost entirely in the electronic environment.

Schmidt: The United States Supreme Court is often very divided in its opinions. The Minnesota Supreme Court does not have nearly the amount of dissents or concurrences as the U.S. Supreme Court. Why do you think that is the case? 

Justice Anderson: I’m not completely sold on the premise underlying the question. In recent years, unanimous Supreme Court of the United States opinions have run in excess of 50 percent of the opinions issued in a given term and 5-4 opinions have fallen generally in the range 15-20 percent. Our unanimity rate is higher, and our closely divided rate is lower, but these differences are not as large as the public might expect. Of course, there are some highly contentious Supreme Court cases that split 5-4 and, not surprisingly, these opinions generate significant media coverage. Our dockets are not the same; all first-degree murder convictions come directly to our Court on appeal, for example, and, for whatever reason, we see fewer civil constitutional disputes. Whether those differences are a factor is anyone’s guess.

Schmidt: What are the most pressing issues that you see within the judiciary? 

Justice Anderson: The overarching concern is access to the justice system, and that includes any number of related issues; in no particular order, those issues include adequate funding for the judiciary, the need for additional judges in specific areas of the state, and support, both public and private, for civil legal assistance and our public defender system. I do want to take this opportunity to stress that the judicial branch has historically had good working relationships with the executive and legislative branches. There are, of course, differences of opinion on specific issues, but leaders of all three branches have a long tradition of open communication and I fully anticipate that will continue. Beyond the access issues, I’m also concerned about the decline of the civil jury trial. One of the ways we are attempting to address this issue is with an expedited litigation pilot program, attempting to get civil cases to trial and resolution more quickly. That pilot shows great promise and I anticipate it will expand.

Schmidt: What makes for an effective Petition for Review? 

Justice Anderson: Pay careful attention to subdivision 2 of rule 117 of the civil appellate rules. A petition that fits within at least some of the criteria outlined in the rule is more effective than an assertion that the court of appeals decision was mistaken. The mere fact that a case garners a great deal of public attention is no guarantee we will accept review, nor does deep obscurity doom a petition for review. Exhibit A of the latter is State v. Vasko, 889 N.w.2d 551 (Minn. 2017), in which we addressed a petty misdemeanor conviction under the Lester Prairie junked or abandoned vehicle ordinance. 

Schmidt: How much do you find that oral argument actually changes or refines your decision in a particular case? What can an advocate do to make an argument more effective to provide assistance to the Court? 

Justice Anderson: I find oral argument useful and while I couldn’t begin to quantify how often it has at least some effect on the outcome of a particular dispute, it’s certainly not unusual for that to occur. And, as to advice, two suggestions: First, answer the question (failure to do so is a frequent problem) and second, admit the obvious.

Schmidt: Do you come up with your questions for oral argument on the fly? Or do you have your questions written out ahead of time? Do your law clerks assist you in coming up with questions? 

Justice Anderson: I make note of possible questions for both parties as I’m reading the briefs and the cases cited by the parties. Often, questions occur to me as I’m listening to my colleagues ask questions. I’m not entirely certain why this is, but I’m asking fewer questions at this stage of my career than I did in earlier times. I only occasionally ask law clerks for assistance.

Schmidt: What would you do if you won a big lottery jackpot? 

Justice Anderson: I don’t know; you’d have to buy a ticket first. The odds don’t look particularly attractive to me. 

Schmidt: You appear to be active on Twitter. Who do you follow? 

Justice Anderson: I am on Twitter at @justiceanderson and invite anyone on Twitter to follow me there although my tweets are decidedly noncontroversial. I focus on history, sports, and the occasional book recommendation. 

Schmidt: A Minnesota Supreme Court Justice does more than just hear argument and write opinions. There is also the administrative side of the job that takes a lot of time, which can include serving on councils or as a liaison for one or more judicial districts as well as other committee responsibilities. Can you describe the administrative duties of a justice, what percentage of time those duties take, and what is your favorite administrative duty? 

Justice Anderson: This is the unseen side of Supreme Court service. Currently, I’m the liaison to two judicial districts, the 10th and the 3rd, liaison to at least two rules committees, and I’m also the Court’s representative to the Board of Law Examiners. At any one moment, there may well be challenging issues percolating up to the court through these administrative responsibilities. 

I also serve on the Judicial Council, which is the governing body for administrative decisions for the judicial branch. I’m not sure “favorite” is the correct word, but there is always something interesting occurring at Judicial Council meetings. The council, an innovation of then-Chief Justice Blatz now under the leadership of current Chief Justice Lorie Gildea, pulls together court administrators and judges from the court of appeals and our district courts, and sets administrative policy for the branch. The branch has several thousand employees in all 87 counties in Minnesota, and the range of experience and talent of those employees is astonishing. I learn something new at every council meeting. 

Schmidt: You appear to be a big fan of Minnesota sports teams. Will the Vikings ever win a Super Bowl? Or are they bound to be pallbearers at my funeral—so they can let me down for the last time?

Justice Anderson: I predict a future Vikings Super Bowl victory at some unspecified time in the future. (And yes, Drew Pearson interfered with Nate Wright.) That prediction and five bucks buys you coffee somewhere.

 

JON SCHMIDT is an assistant Hennepin County attorney in the Special Litigation Division—Appeals Unit, focusing exclusively on criminal appeals. Prior to joining the Hennepin County Attorney’s Office, Jon was a shareholder at Briggs and Morgan, P.A., with a varied appellate and litigation practice. He lives in St. Paul with his wife (Ramsey County Judge Sara R. Grewing) and their two kids.

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