Gildea named to take Magnuson's place on high court

Supreme Court Justice Lorie Skjerven Gildea was named Thursday as the new chief justice of the state's high court, replacing Chief Justice Eric Magnuson who is stepping down.

Gov. Tim Pawlenty, who appointed Gildea to the state Supreme Court in 2006, said in a statement that she has "exhibited common sense, a strong intellect, and a commitment to the idea that judges should fairly and appropriately interpret the law, not create it themselves."

Gildea, 48, was re-elected to the Supreme Court in 2008. Before being named to the Supreme Court, Gildea was a judge in the Fourth Judicial District, Hennepin County.

Gildea won't just be deciding cases. She's also effectively the leader of a $300 million state agency, with 315 judges. Like other parts of state government, the courts have been suffering financially. They've been cutting staff and public services to save money.

Gildea spoke to those challenges as she accepted the promotion to chief.

"With heart in hand, I promise to do my best. And to work with all the members of the judicial family as we make this pivot from challenge to opportunity."

Gildea wrote a 21-page dissent in last week's court decision that effectively undid Pawlenty's unallotment of nearly $3 billion in state spending. Gildea said Pawlenty's budget cuts were legal, but she was among 3 justices outvoted by 4 who said the governor overstepped his authority.

Pawlenty also named another player in the unalllotment drama to the court.

University of Minnesota law professor David Stras will replace Gildea as an associate justice. Stras wrote a friend of the court brief in the unallotment case, defending Pawlenty's unilateral budget cuts.

Stras, 35, is currently a law professor at the University of Minnesota. His work covers federal courts, jurisdiction, constitutional law, criminal law, law and politics, and law and economics.

Stras is director of the Institute for Law and Politics and assists clients in cases before appellate courts for Faegre & Benson, LLP.

"I am impressed with his tremendous intellectual and legal abilities. He will be a strong presence on the Minnesota Supreme Court for many years," Pawlenty said in a written statement.

Stras said he will strive to honor the work of past judges. He said the role of a judge "is a limited one."

"Judges can't solve every problem. But at the same time, judges play a crucial role in safeguarding liberty and protecting the rights of all citizens," he said.

Both Stras and Gildea of them declined to talk today about their role in the case, but critics like state Rep. Ryan Winkler, DFL-Golden Valley, called the appointments political payback.

"Well, its clear that the governor wanted to reward a couple of people that wanted to protect his unallotment authority and he took advantage of a couple of vacancies and did that today," he said.

Pawlenty did cite Stras's argument in favor of unallotment when he talked about his familiarity with the new justice, but the governor brushed off questions about the case.

"The unallotment case has been decided. We're not going to re-argue it. It speaks for itself," he said. "The arguments for the majority and minority are all there for the world to see. So we're not going to re-litigate that here today."

Law professor Peter Knapp teaches at the William Mitchell College of Law in St. Paul. He said he didn't think the governor needed much convincing about Gildea, even before the unallotment case, one reason being that Pawlenty appointed her to the high court in the first place.

"I absolutely don't think so. I think most of the people that had been watching the court would have suggested that Justice Gildea would have been one of the likely candidates the governor would look to in filling the vacancy left by Chief Justice Magnuson's resignation."

Knapp said that Stras's background would also make Stras a likely candidate for the state's highest court, regardless of the unallotment decision.

At 35, Stras is one of the state's youngest Supreme Court justices ever, but he's already has served a stint as a law clerk for U.S. Supreme Court justice Clarence Thomas and earned tenure at the University of Minnesota. He's also a well-regarded member of the conservative Federalist Society.

Yet Knapp said Stras has also offered some innovative legal ideas in his scholarly work.

"if you look back, you'll find a very interesting article that professor Stras wrote arguing that U.S. Supreme Court Justices get out and ride circuit, hear some cases in the lower courts. That's something we've had Minnesota justices do before. I don't know that's something he'd consider, but that's something he's recommended for U.S. Supreme Court Justices."

Unlike the federal justices, Minnesota's top judges don't need confirmation by the Senate. Magnuson is set to leave the court June 30.

Also Thursday, the Minnesota Supreme Court denied a petition brought by attorney Greg Wersal and others to require the state to hold an election in November for chief justice. None of the four Pawlenty-appointees to the Supreme Court participated in the decision.

The court, in an opinion written by Justice Alan Page, said state law doesn't require an election in 2010 because the chief justice will have been appointed less than a year before then.

The law says a justice will be elected in the next election year after appointment, provided the appointment happens at least a year before the election.

Wersal said he plans to file a lawsuit in federal court on the matter. He said Minnesotans have been unable to elect a state Supreme Court justice for many years because they resign before election.

"We've had three resignations in a row now," said Wersal, who has sought to run for the post. "At some point in time, this has got to end. These judges are to be elected."

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