Associate Justice Sam Hanson
Minnesota Supreme Court
MSU/Gustavus Pi Sigma Alpha Initiation Banquet
Friday, April 11, 2003
“Thank you for having me. I tried really hard, as the new initiates were coming up, to see if I could figure out the secret handshake. But it was done so well, I couldn’t quite figure it out. So it’s still a secret within. I’m a little bit intimidated at trying to entertain a group like this on a beautiful Friday. I was telling our table, as I drove out of the Twin Cities past some golf courses, it was just really tempting to [laughter] slide in the other direction. But I’m delighted to be here, back in my old roots.
I am the newest member of the Minnesota Supreme Court, and also the oldest member. Only Jesse Ventura would see that as not a contradiction. Most governors want to appoint really young people – they stay on the bench for the rest of their life, and the governor can be long gone, but he knows he’s had an impact. But Jesse didn’t worry about that, so he was not concerned with age. My wife always tells me anyway – she says in the body of every older person is a young person saying ‘What the heck happened to me, anyway?’ [laughter] So, that’s the way that works.
I grew up here in Mankato, went through high school here. I snuck into the gym, often, of the old campus – it was then called Mankato Teachers’ College. And we were always found out, and always exited – escorted out. I got close to Gustavus, often, because in, I think junior high and early high school, we used to play softball in what’s now called the regional treatment center. They didn’t use such politically correct names back then. We would play in a field where you would have to go through several bars – the electronic bars would close behind you and you went through another set. It was an unusual field configured within their grounds, because this huge wall, from which you could not escape, came very close to second base. So they had drawn a line on that wall, and anything over the line was an automatic double. You had to accommodate for the arrangements there, in St. Peter. Also, my homecoming and prom date lived in St. Peter, while I was in high school – for two of the years. It was a little tricky, because my father’s rule was, the car does not go out of town. Now, in St. Peter out of town, that’s where I got inspired to be a lawyer . . . [laughter]. But rather than argue that issue with him, of course I just went – made my own interpretation and went. She lived right up near the campus – I don’t know if the house is still there or has been absorbed by the campus. So that got me over there.
I’m now part of the Minnesota judiciary – have been for three years – two years on the court of appeals and this last year on the Supreme Court. And I imagine, as poli-sci students, you’re all very familiar with the Minnesota judiciary. But just to put us all on the same page, I’ll describe for you the three components. We try not to call them three levels of the court, because they’re all co-equal. There are three components that have different functions. There is the district court component, where all cases start; no cases ever start in the Supreme Court; at least it would be rare. All trials are conducted there. We have 260 judges in Minnesota, and 2 million cases filed per year. Do the math; it’s an awful lot of cases. Minnesota, as the legislative auditor decided a year ago, has the highest caseload per judge in the United States – 40% greater than the median level. It means that each judge has 7.25 minutes of attention to give to every case. So if you think of a district judge who might be in trial on a murder case for two weeks, that goes into the average that adds up to the 7.25 [minutes]. But for our budget crisis, we would be asking for more district judges; the state of Minnesota needs them desperately.
Those cases handled by the district court then go to the court of appeals, and also any county commissioner decisions, municipal decisions on zoning, administrative agencies, go to the court of appeals. There are typically 2,000 cases that go to that court every year. [There are] sixteen judges on that court, sitting in panels of three.
The Supreme Court has seven members, and we generally hear only cases that we decide to hear. If you lose at the court of appeals, you can petition for further review. You don’t have a right to go to the Supreme Court – much like the United States Supreme Court. You have to petition and meet certain criteria, which generally has to do with not whether it was right or wrong – we don’t see ourselves as error correcting – so much as, does it have an impact beyond this case, on the state of Minnesota. We accept, out of probably roughly 1,500 petitions, less than 125 a year. So it’s a very small number that actually get to the Supreme Court. Then we take all the first-degree murder cases, which, by law, come directly to our court. When I got on the court, I was surprised at the number there are in the state of Minnesota; we hear two or three a month. That’s the convictions. We can say the number of first-degree murder cases that are tried, are many more than that. It wasn’t that way years ago; it’s just a growing phenomenon.
We’re created by the Constitution, and we tell the governor right now, we’re a separate branch of government. We can’t negotiate our budget. But of course, we won’t say it too loudly. It would be a strategy that probably is legally justified, but not very smart. We know we’re going to live with the legislature and governor for years, so we’re trying to work it out. There are certain minimum functions. The Constitution says every citizen has a right to have their matters resolved by a judge promptly. And you have to fund the court for that to happen. If the funding isn’t there, justice is going to be delayed, or some things might be eliminated, like the conciliation court for petty misdemeanors. So, when you talk to your representatives, tell them to be sure to fund the judicial system; there isn’t any way to avoid that.
How and why did I join the court? It was my dream come true. You can imagine that with seven positions, the chances of getting on a court like this are very rare. You have to be in the right place at the right time. I was not particularly politically active, so I waited for Jesse Ventura to come along. Jesse had no political debts, and he made merit selection for the 75 judges he appointed during his term, without ever asking a political question - what’s your ideology, where do you stand on certain political issues - he didn’t care. Surprisingly – and I didn’t know him, and had never met him until that first time I interviewed with him - he conducted the most professional interview I had ever been in. He understood the job of a judge; he understood the difference between a trial judge and an appellate judge, in terms of how they function; he asked questions about me. He said, ‘You’ve been in private practice on your own for a long time in a large firm, making decisions. Now you’re going to have to decide cases with two other people on the court of appeals, or six others on the Supreme Court; are you going to be able to work in that kind of a collegial environment, in a collaborative effort?’ That’s not the Jesse you saw on television. He was just very sensitive, professional, and interested in the court; he loved these judicial appointments.
I had wanted to do this for years. I was a law clerk for another justice on the court who was also from Mankato, Robert Sherron – I practiced law with him for many years. We had that – we call it the ‘Mankato Mafia’ connection. In 2000, I took a trip to China with a group of lawyers, and was kind of inspired to look at the American legal system from a distance – as you look at another system – a brand-new, struggling system. I was re-energized, and I came back and then I got two fortune cookies. One said, ‘You would make a good lawyer.’ And I thought, ‘This is kind of a subtle message; it doesn’t say you are a good lawyer; it says you would make a good lawyer.’ And I read a bit of a negative implication to this. The other one said ‘You will have a comfortable old age.’ And I knew that, with trying lawsuits day after day, I knew that was not comfortable. I wouldn’t call that comfortable – very exciting, very energizing, but not comfortable. So I said to my wife, ‘Maybe Governor Ventura is going to use a merit selection process where you don’t have to have political friends to consider; maybe I should finally do this.’ She said you sound a lot to me like Ole, who was having this ongoing argument with God about the lottery. And Ole had prayed and prayed and prayed to win the lottery. He had done good works, and he had really thought he had it wired. And here comes another Saturday, and he didn’t win the lottery. And finally, in frustration, he really was chewing out God: ‘I’ve prayed, and done all these things, and still I don’t win the lottery.’ And God said to Ole, ‘Ole, you have to buy a ticket.’ [laughter] My wife says you’ve got to buy a ticket.
I want to talk tonight about two legal systems. I hope some of you are pre-law. Are any of you pre-law? This might be more interesting if you are – raise your hands if you are [show of lots of hands]. Oh, great – a good smattering. I’ll try to make it interesting to everybody. And I think it is interesting, because it deals with appreciation of our legal system, and the role it has played in the success of this country, as best seen, from a distance – from another experience. Let me describe this to you. The common elements in the two legal systems I’m going to talk about – that were common at their birth. There’s a Zen saying that things begin in a messy fashion, and that is true of the legal system. The legal systems I’m going to talk about had no clear body of law to apply. In fact, each of them had rejected the historical body of law that people had assumed would apply, for political reasons. In each of these systems, the court was subordinate to the political process; it had not established itself as a separate, independent branch of government. And it had no power to override the political decisions that were being made. In each of these systems, the judiciary was completely unqualified, most not even having legal education, most having been drawn from the military, as a promotion into a civil-service type of position. In these two judicial systems, there was no judicial independence; the judges were subject to influence - political influence, economic influence. They would be appointed, but they could be removed if someone was unhappy with the way they made decisions. In these two systems, there were minimal standards for qualification to be a lawyer, and even, pressure for de-professionalization. Law schools would discourage practice, or learning law with another lawyer, as a way of becoming qualified. [This] was seen as more egalitarian. And in these two systems, there was no organization of lawyers to speak as a body on behalf of their clients or groups of clients, toward change and reform. Now those two systems are, the legal system in the country of China, right now, in 2003. You might be surprised to think that this is also an accurate description of the legal system in the United States after the Revolution, as we began our country. Most lawyers in the United States at that time were – many were – although there were many to sign the Declaration of Independence and were in the forming of the Constitution. In terms of percentages, when you look around the country, most of the lawyers were royalists, and when the Revolution happened, they went north to Canada and to England. In the Jeffersonian era, there was a great deal of de-professionalization of the legal profession. Judges were appointed from the military. The New Hampshire Supreme Court, when it started, had a veterinarian, a minister or theologian, and one who had been trained as a lawyer; there were three justices on that court. The English law, which had been the root of colony law under our justice system, because of the Revolution, was discarded for many years. It took probably fifty years before the English common law came back as a support for our system. So it was that we, two hundred years ago, were standing where China stands today. We didn’t have an existing body of law; we didn’t have qualified members of the judiciary; we had discarded a lot of the history that could have been drawn upon, and that later was drawn upon. It was very unclear if we had an independent judiciary. Just a few months ago was the 200th anniversary of Marbury v. Madison, which I hope you studied in con law, which decided the role of the court in the United States’ system: that the court would actually interpret the Constitution, and could override legislation. All of those things right now – we are so accustomed to them, we think they were always here. But they were actually obtained with the blood, sweat and tears of everyone who went ahead of us.
Now my thesis for tonight – and I can’t be proven wrong, so it’s a beautiful situation [laughter] – some of it is predicting the future – is that no matter how much we enjoy maligning lawyers (and we lawyers enjoy it too; we like to tell jokes on ourselves, just to get a jump on somebody else who is going to do it anyway). The United States’ economic, political, cultural systems would not have been successful, but for the development of an independent judiciary and a vigorous legal profession. That’s my premise. If you assume that with me for a minute, then I’ll tell you how I get there – our test case is China. [China] is an interesting thing to watch in the world, because their future is far from certain right now, and I think the missing link, for them, right now, is their success in creating an independent judiciary and a vigorous legal profession. Assume for a minute that every society has three processes going on at all times – political, economic, and cultural. And, that a well-functioning society is one in which each of those is contributing strongly, in some relative balance. This is an analytical model that allows you to be a little bit objective in looking at a problem like campaign financing. When the political system is being dominated by the economic – that’s one way of talking not about what’s good or bad, but that’s just the way it is. The political system is not contributing on that issue to the extent that the economic is. If that’s true – if that’s a true model – that balance in society between those processes leads to a well-functioning society – what advantages does the United States have in the great success we’ve had in the last century? You can call the last century, as I think anybody would have to say, ‘the American century’ in terms of world history. We had the advantage of a Constitution with separation of powers, checks and balances, states’ rights and individual rights, and that actually facilitated a balance between these processes. We were able to combine a democratic political system with a capitalistic economic system and a very diverse, ‘unique for the world’ diverse cultural system. Because of that balance, and underlying it, I think, critical to it was an independent judiciary, business rights, individual rights and protections, these rights of the state and rights of individuals against the state, could reliably be determined, in a way that people had confidence in. I don’t know that we always had confidence from the earlier years, but I think that despite whatever shortcomings there are, you would have to say people in this country rely on the judicial system to resolve tremendously complex and important issues, including who the president of the United States will be. It’s a system that works; we don’t always agree with it, but it works. And underlying that is a vigorous legal profession, which has been the guardian of the independent judiciary; nobody else would push for it. Lawyers every day, as they go in and argue cases, depend upon and insist upon an independent judiciary: an unbiased judge and a system that is fair for their clients. And they have been the ones that have crafted the legal forums that allow our policy dreams to come to fruition: the various forms of incorporation, or business arrangement, the arguments about constitutional rights, and so on. So that’s my premise; you can hardly prove it wrong, though you may not agree with it.
Where this really sunk into me was not practicing law here in the United States, because after thirty-some years of that, there are several levels of cynicism that you confront, and I’m guilty of that as much as anyone. You tend to take for granted the wonders that exist in our system, and look only for the areas of criticism. So I had to get out of [the U.S.], to stay in China and work with some lawyers and judges over there. They have the courage to try to create a system under very disadvantageous conditions in terms of their history. [It helped me] see how the amazing journey is happening in this country, and how all the things I took for granted really were earned by the difficult efforts of those that went before [me]. So I think this is going to be the proof of the premise; we’ll have to wait and see. If you look at China right now, it stands at the door of the Chinese century; it’s theirs to lose, I think we can say. As they begin gradually to allow economic freedom, they have just exploded economically; 20% growth is what they expect going into the future, and it’s probably going to be more dramatic than that. They have the largest market in the world; they have well-educated people; they have an almost-inborn entrepreneurial spirit; they’re very inventive; they’re hard-working; they’re industrious; they have the work ethic. They have everything that is going to make them, certainly, a major economic force (they already are), and I think the major economic force in the next century. But for one thing, and I think it’s going to be all-critical to them: the missing link is an independent judiciary and a vigorous legal profession. They really have some enormous challenges in creating that, despite the courage of those who have the vision for it. I went to China without having thought this through very much, and kind of discovered it while I was there; I’ve been there a couple of times with these legal visits. And it began to dawn on me just before I went, how do they do this, under a Communist government? How do you have a capitalistic economic system; how do we deal with a cultural relation, which is very tradition-bound? It’s homogeneous in terms of racial mix and so on, but very tradition-locked. [How do] you do all that within the context of a Communist, centralized, controlled political system? If my original assumption has any merit whatsoever – that a well-operating society is one where these processes are in relative balance – it doesn’t fit in a Communist system. [Consider] their judiciary, for example. We think separation of powers, three branches of government, the court stands by itself except when it has to go for budget dollars. That’s not the way you would see the flow chart in China. In China, there is the standing committee of the Communist Party – seven members on the national level, and then repeated in every province. Beneath that, the People’s Congress; beneath that, the executive functions, beneath that the judicial system, intended to be subordinate. In their political ideology, it should be subordinate. In the Communist way of thinking, it [the court] is subordinate. You don’t allow an independent court to decide, for example, even what legislation means, because that would interrupt the function of the People’s Congress, which is a higher power, and intended to be a higher power.
So they have enormous challenges. If you begin to read now, I saw in the Wall Street Journal a week ago, discussions of this very issue. Investors around the world are afraid to go into China cooperatively, because of the lack of an independent judiciary. How do we form a contract and then enforce it? Microsoft is looking pretty much at piracy in China; it is enormously good at copying our technology, and not recognizing that certain licenses are recognizing property rights. How do we go into China and enforce the intellectual property rights? You have to go to a judge who was appointed by a Communist Party member. We have in the United States – I don’t know if you have heard this term – we do not allow a judicial officer to have what is called an ex parte communication. It means somebody, not in the courtroom, is trying to contact the judge to influence their decision on a case, whether it be a party, or someone from the legislature, or someone that they know. Judges immediately have to cut off that conversation, make a record of it, and if they don’t, they’re subject to sanction. It’s not permitted; in our system, you decide a case with all people present in the courtroom, based on the record. We asked the Chinese judges and lawyers, ‘Do you have a comparable idea?’ We had to explain ex parte, what does this mean. It wasn’t a language barrier; it was a conceptual barrier. The head person in the [Chinese] judicial system is the Communist Party official assigned to the court. And if you think that person can’t go talk to a judge about a pending case, you’re in another universe. They do it regularly; they’re expected to do it. They tell the judge how the case ought to come out. So, imagine yourself as Microsoft, or anyone else, wanting some assurance that you can invest money, invest time, to create a product, work cooperatively, and be able to do as you can do here – to go to court to enforce a right if the other party doesn’t agree with you or doesn’t recognize that right. That doesn’t exist in the Chinese government right now. The World Trade Organization has required it, specified it, as a condition of their membership; the world is asking for it. China is beginning to think about it, not because their political philosophy would lead them to that conclusion – it’s not something they desire, but it’s something they see as necessary. And they may or may not make it. If they don’t make it, I don’t think it will be the Chinese century; I think they’ll fall short. They’ll certainly be a power – a major force; they’ll certainly have a strong economy. But they won’t be another America, because I think this element is huge.
How does this translate? I’ve been thinking about this more for lawyer audiences. What privileges have we given to lawyers in our society, in order to make them able to fully represent their clients and really seek justice? If you look at China in comparison, or virtually anywhere else in the world, it’s kind of amazing to see what we can do. In this country, a lawyer, meeting with a client, hearing a complaint, can go out and investigate, in virtually any way you want to, the underlying facts. You don’t have to ask anyone; you don’t need anyone’s permission. There might be some information that’s not available to you because it’s under confidential government records, or within the attorney-client privilege relationship, but short of that, you can go ask anyone. When I was in China the first time, there was a young lawyer – a recent graduate; they just reopened their law schools in 1988; they don’t have many lawyers; they’re all under the age of 40; this was a really young one; he had just come out of law school. They sent him out to kind of the wild, wild West of China, which is still under development, to defend a criminal case. He had been trained in a law school where many of the professors had studied in the United States. They don’t really have any legal history; they threw out the imperial law; they imported the Russian Communist system for a while; they threw that out, and so they’re starting from scratch. So they kind of teach American practice. This young lawyer, excited by the advocacy rights of an American lawyer, went out, found all the witnesses he could interview – a dozen of them – got some lined up to come to the first day of trial, and when he walked into the courtroom, the judge sentenced him to jail, for improper advocacy. The role of investigation is the role of official authorities, in the government, not that of a private lawyer. And he went to jail, for doing what we do all the time here. In this country, you can design your lawsuit – you can sue the government; we had conversations with Chinese lawyers about this. If you think that a statute is being misapplied or that it’s unconstitutional, how do you raise that issue? You sue the government; you can sue the legislature; you can sue the administrative agency that enforces it. Well I can tell you for sure: you don’t sue the government in China. You don’t design that kind of a lawsuit. You don’t sue the Communist Party, and if you did, of course, their representative would take care of that suit. Here, you can support a claim by discovery, and use the force of the government to do it. It’s a compulsory process; you can require people to come; serve a subpoena on them, have them come talk to you and ask them anything you want about the case. There are very few countries in the world that have compulsory process. China certainly does not; you cannot use the power of the state to compel people to talk to you about a case. [That’s] true in many places; in Japan, if you want to take a deposition, you can only do it in the United States embassy, because it’s considered American soil; they will not allow you to do it on their soil. A lawyer here can develop scientific evidence for use at trial. If there’s a DNA issue, you’ve got your expert, the state has their expert. You can work with them to get scientific evidence. We asked the judges in China, ‘What do you do about scientific evidence?’ They call the official scientist. If it’s a medical problem, they call the local hospital; that official addresses the issue, and that’s the answer. There aren’t two points of view. Whatever answer you get from that person is the answer. In this country, you can direct the course of a trial. Those of you who will become lawyers, if you want to be a trial lawyer, you’ll have the experience which is very heady. At your first trial, you come into the courtroom, the judge says, ‘Are both lawyers ready?’ ‘Yes.’ ‘Proceed.’ This is not the judge’s show; this is your show. You decide who you’re going to call as a witness; you decide in what order; the judge is going to run the trial in terms of evidence, rules and what not; you can’t dally around too much; they have ways of dealing with that. But you direct the course of a trial. In China, the lawyers aren’t; they’re not secondary, either, but about eight times removed. They’re bystanders; they can advise a client sitting next to them; they have very little role. They don’t have juries as we have; they don’t allow you to develop your own private client relationships; they don’t recognize the privilege of communication with your client. In this country, you cannot, as a lawyer, be compelled to disclose a conversation with your client. Nobody can require you to do it, for the sake of fostering the candor and honesty of the relationship. And in this country, a lawyer is regarded as an officer of the court, and given high respect by the judge, unless you lose it – but you don’t have to earn it; you’re given it. You can lose it by misconduct.
Think of yourself as a person with a problem – a legal problem. What equipment – what tools – would you want your lawyer to have? Those are the essential tools that lawyers, over the last 200 years, have fought for. They didn’t always exist. And they were won, one at a time, by our courageous efforts, just like the Chinese lawyers who went out to the western [area]. They pushed beyond the envelope and ended up in jail. So, those of you who want to be lawyers, have this birthright, that comes from those that went ahead, and earned it. And all of us, as citizens, have the right to have confidence – the sense that our judiciary will be fair and impartial – and to have all of these most important cases decided on their facts, and on a legal principle, not on a political ideology. Now watch China – and you’ll have to watch it for about 40 years before you can prove me wrong – so I feel pretty safe. But see if that’s not true. Either they’re going to develop an independent judiciary and a vigorous legal profession, which means they’re going to have to tell lawyer jokes, just like we do. Or, they’re not going to make it. You know the famous Shakespeare quote, which is shown on T-shirts, ‘first kill all the lawyers.’ Actually, the whole text of that is, ‘If you wish for tyranny, first kill all the lawyers.’
Thank you very much for having me.”