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An interview with Chief Justice Lorie Gildea of the Minnesota Supreme Court

‘We are quite collegial, and that is not by accident’

 

Chief-Justice-Lorie-Gildea-150Chief Justice Lorie Skjerven Gildea has served as the Chief Justice of the Minnesota Supreme Court since 2010. Before becoming the Chief Justice, she was appointed to the Minnesota Supreme Court as an Associate Justice in 2006 by Governor Tim Pawlenty. Prior to her time on the Court, Chief Justice Gildea served as a judge in the 4th Judicial District in Hennepin County. Before joining the bench, she was a prosecutor in the Hennepin County Attorney’s Office, an associate general counsel at the University of Minnesota, and in private practice at Arent Fox in Washington, D.C. She attended college at the University of Minnesota Morris, and law school at Georgetown University Law Center. 

Chief Justice Gildea and I recently discussed her role as the head of Minnesota’s Judicial Branch, her goals for the Judiciary, and what she enjoys doing with her (limited) free time.

Jon Schmidt: In your role as the Chief Justice, you have worked closely with three different governors and several different legislative bodies. What have you found to be most challenging within that role? On the flip side, what has been the most fun?

Chief Justice Lorie Gildea: Getting to know the governor and legislative leaders is affirming. We are blessed in Minnesota with so many hardworking, civic-minded leaders who, at the end of the day, just want to do what they perceive to be the right thing for the people we all serve. And advocating for justice system funding reminds me of what I loved most about being a practicing lawyer—advocating for a client in whom I believed. Now, of course, it is not a client, but a cause for which I advocate. I will always be an advocate, and that is a role that I very much enjoy. 

Schmidt: If you were given an unlimited amount of funds and resources, what would be your top three priorities for the Judicial Branch? What, if any, major changes would you institute?

Chief Justice Gildea: More money is not the answer to every question. Some of the problems we face in the Judicial Branch, such as rising caseload demands, could be solved if people behaved better toward one another. But because the question asks how we would utilize unlimited resources, let me lay out three broad goals.

First, we could ensure that we had the judges and court staff needed so that no Minnesotan would have to wait to access their court system, that every Minnesotan who wanted an attorney had one, and that every case involving children that needed a guardian ad litem had one. 

Second, we could upgrade the physical safety and security of our 105 court facilities and enhance the Judicial Branch’s cybersecurity. These are truly access-to-justice issues. Minnesotans deserve to feel safe when entering their local courthouses and to know their private and sensitive data is secure.

Finally, unlimited resources would enable us to better use technology to facilitate access to, and the administration of, justice. We have made great strides in this area over the past 10 to 15 years, but as technology continues to evolve and improve, it’s important that our justice system continues to evolve with it.

Schmidt: Besides writing opinions, hearing oral arguments, and serving on committees, you are all over the state attending events, investitures, retirements, CLEs, etc. Do you ever sleep? If you ever have free time, what do you like to do? Somewhat related, let’s say you’ve had a long and busy week. It’s Friday night. What are you doing?

Chief Justice Gildea: I enjoy going to the barn and riding my horse. I also enjoy cheering for the Golden Gophers and have been known to yell at the officials from time to time. 

Schmidt: You have taken the Court from a paper-based system to (largely) an electronic system. Do you think the courts—or at least the appellate courts—will get to a completely paperless system?

Chief Justice Gildea: The district courts in Minnesota have transitioned to the electronic world. Except for self-represented litigants, all other parties are required to file electronically. We are seeing many self-represented litigants already choosing to file electronically, and we are continuing to roll out new tools to make that process easier for those court users. That includes the fillable “smart” forms available on our public website, and Guide & File, a new application that uses web-based interviews to simplify the process of filling out and filing court forms.

On a related note, I understand that there are some district court judges who still insist on courtesy paper copies of briefs. I know this is a concern of many attorneys, and I’m hopeful that we can find a better way to give judges what they need, while not asking attorneys to provide paper copies of documents they have already e-filed. I’m proud to say that the vast majority of the chambers on the Supreme Court are largely paperless, and we no longer receive paper briefs in chambers. The Court of Appeals still has a way to go. I know it is frustrating for the appellate bar to live in both worlds. 

Schmidt: The vast majority of people who will read this interview are attorneys. What can (or should) lawyers be doing to help improve the Judicial Branch?

Chief Justice Gildea: The Court is proud of the caliber of the bar in Minnesota, and we benefit from a good and productive bench-bar relationship. We are concerned, however, that in recent years the number of attorneys doing pro bono work is declining.

One measure of pro bono services is to look at the number of attorneys representing low-income clients through the pro bono programs our 11 civil legal services have organized across the state, such as Volunteer Lawyers Network and SMRLS [Southern Minnesota Regional Legal Services]. In 2014, there were
2,922 such attorneys. But in 2018, that number dropped to 2,471. Those numbers show a decline of more than 15 percent over five years in the number of pro bono attorneys actively volunteering. We have a significant gap between the need for legal help and legal help available to fill that need. Some of that gap could be filled if more attorneys took on pro bono matters. 

Schmidt: In your tenure on the Court, are there oral arguments that stick out in your mind as particularly memorable? What about those arguments stick out to you (good or bad)?

Chief Justice Gildea: It is still a rare enough occurrence for the Court to have women representing both sides at oral arguments. When that happens, I notice it. Overall, I am much more likely to remember a particularly good oral argument than I am to remember negative ones. We had an argument within the last year that was quite memorable. The case involved a complicated statutory scheme. We had attorneys on each side who were very experienced in the subject matter and able to directly and clearly answer the Court’s questions in a way that simplified the issues for decision.

An argument I remember as a negative experience involved an attorney (not an attorney from Minnesota) who seemed to almost yell at the Court, apparently believing that if he just talked louder we would stop interrupting him. 

Schmidt: What is your favorite thing to do in Plummer, Minnesota? How about in Morris, Minnesota?

Chief Justice Gildea: The Court visited Plummer last fall as part of our high school visit to Lincoln High School in Thief River Falls. I took the Court to my dad’s museum, the Tri-River Pioneer Museum. To be honest, it is not really my dad’s museum, but he was instrumental in getting it built, donated many of the artifacts in the museum, and has the keys, so I think it is fair to call it my dad’s museum.

When I was a student at the University of Minnesota Morris, one of my favorite things to do was spend time at Pomme De Terre Park walking, studying, and just enjoying nature. 

Schmidt: Justices on the Minnesota Supreme Court have their disagreements in opinions, but, from an outsider’s perspective, it remains an extremely collegial court. To what do you attribute this ability to disagree yet remain friendly, or even more, enjoy each other’s company?

Chief Justice Gildea: We are quite collegial, and that is not by accident. The seven of us are heavily invested in making collegiality our reality. The cases we are called to decide are always difficult and often very close. We recognize the complexity of the task and the value in having six other people helping us resolve some of the most important legal questions presented in our state. 

We also recognize that we are the face of the justice system in many ways. What we say and how we say it reflects not just on us and the Court, but on the justice system more broadly, and ultimately informs the people’s trust and confidence in that system. The seven of us understand the fragility of the people’s trust and are fully committed to doing whatever we can to be worthy of that trust. 

Schmidt: What has been the biggest challenge you’ve faced as Chief Justice?

Chief Justice Gildea: The government shutdown in 2011 was the biggest challenge. Preparing the Judicial Branch so that we could continue to provide access to justice in the face of a shutdown and authorizing the Judicial Branch to go to court to get a court order to keep the courts open were some of the challenges we faced in 2011 that hopefully we will not have to confront again.

Schmidt: What is the most rewarding aspect of your job?

Chief Justice Gildea: All of it. I wake up every morning grateful for the opportunity to serve the people of my home state as their chief justice. 

Schmidt: Do you have tips for practitioners for recognizing the differences between softball questions at oral argument versus questions that may be more of an attack on a position?

Chief Justice Gildea: I sometimes think attorneys spend too much time thinking about why we are asking a question instead of just answering the question. For the most part, we are asking because we genuinely want to know what you think, so just answer the question, and let us worry about the rest. 

Schmidt: Can you describe aspects of your job as Chief Justice that may differ from those of the Associate Justices?

Chief Justice Gildea: The chief justice has the same responsibilities for deciding cases and writing opinions as the associate justices. In addition to those duties, state statute provides that “the chief justice shall exercise general supervisory powers over the courts in the state.” Minn. Stat. §2.724, subd. 4 (2018). In essence, the chief justice is the chief executive officer of the Judicial Branch of our state government. The Branch operates in 105 locations across the state of Minnesota. We have 321 judges and approximately 2,600 court staff. Our annual budget is about $367 million. I chair the Minnesota Judicial Council, which is the 25-member policymaking body for the Branch. As the Minnesota Constitution directs, I serve on the Board of Pardons with the governor and the attorney general. Minn. Const. Art. V, sec. 7. I also serve on other committees and make appointments to statewide bodies as directed in state statute. By statute, I also have responsibilities in connection with recall petitions for county officials. Minn. Stat. §351.17 (2018). 

Schmidt: Assuming you are in the majority of votes, what goes into your calculation when deciding which justice will author a particular opinion?

Chief Justice Gildea: Our cases are assigned randomly by our Supreme Court Commissioner’s office before oral argument. If you are assigned the case, your chambers is responsible for preparing a bench memorandum to the Court recommending how the case should be decided. At conference, the justice to whom the case was randomly assigned presents the case, and if, at the conclusion of conference, that justice has a majority, that justice will write the opinion. If the justice to whom the case was randomly assigned does not have a majority and cannot write the view that did garner the majority vote, then it falls to me to assign the majority. My typical practice is to assign the case to the senior member of the Court who sided with the majority, unless that justice defers to a more junior justice. 

Schmidt: Some quick fire questions for you: What is your favorite: 

Movie? The Philadelphia Story and North by Northwest

TV show? Batman (the one that was on in the 1960s).

Book? I have many favorites, but my most recent favorite is The One Man, by Andrew Gross. 

Band? Plummer’s high school marching band (when I was in it).

Song? Again, I have many favorites, but my most recent favorite is “Humble and Kind,” by Tim McGraw.

Concert? Same story here, but my most recent favorite is Garth Brooks, US Bank Stadium, May 2019.

Food? Bacon cheeseburger, Maryland lump crab cakes, coconut shrimp (not all at the same time).

Dessert? All of them, but mostly frosting.

Place to eat? Nicollet Island Inn.

Place to travel? Lake Vermilion. 

Schmidt: Can you reflect on the changes the courts have faced over the last 10 years? And challenges you see coming over the next 10 years?

Chief Justice Gildea: Major criminal case filings have increased by more than 20 percent over the last 10 years, including large increases in drug cases. These increases stress our ability to deliver timely access to justice.

While we have seen huge increases in our criminal docket, the number of civil cases filed in Minnesota’s courts has dropped dramatically over the last 10 years. In 2009, almost 45,000 “major” civil casesincluding contract, personal injury, commercial, and employment disputes—were filed in Minnesota, and last year that number dropped to below 31,000. If that decline means that there are fewer contract, employment, and commercial disputes, that’s a good thing; but if that decline means that more and more such disputes are being resolved behind closed doors through the private justice system, that could be cause for concern. Based on work from the Civil Justice Reform Task Force, we instituted reforms in an effort to get civil cases through the court system more quickly and efficiently. We need to monitor the effectiveness of these reforms to ensure that people believe the courthouses are open to them for timely resolution of civil cases. 

The changing demographics in Minnesota have created, and will continue to create, additional pressures on our court system, and require us to adapt to the changing needs of our court users. The retirement wave washing over the Judicial Branch is one example. Another example is the growing diversity of our court users. The number of cases needing a court interpreter has increased by 12 percent over the past 10 years. The provision of adequate interpreter services is an access-to-justice issue. In our current strategic plan, we are emphasizing greater utilization of remote interpreting as a way to meet this need.

Finally, the challenge created by the huge influx of cases involving children in need of protection/services will be with the Judicial Branch—and our broader justice and social service systems—for years to come. 

Schmidt: If the Minnesota Supreme Court Historical Society were to someday write a summary of the Gildea Court, what would you hope to be the pinnacle achievement?

Chief Justice Gildea: I hope it will be said that my service in the Judicial Branch enhanced the trust and confidence that the people of Minnesota have in their justice system.  

JON SCHMIDT is a senior assistant Hennepin County attorney supervising the Appeals Unit within the Special Litigation Division, 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.