Minnesota Lawyer
Former U.S. Attorney and DFL litigator David Lillehaug broke into a grin at the March press conference where Gov. Mark Dayton announced his appointment to the Minnesota Supreme Court. (AP photo)
After more than a quarter century of arguing in court rooms, often on behalf of Minnesota’s most prominent Democratic lawmakers, David Lillehaug now wears black.
The newest associate justice of the Minnesota Supreme Court took the oath of office in a ceremony last week, donning the black robes of a judge and putting a cap on a long career that included four years as U.S. Attorney under the Clinton administration and more than a decade as the go-to litigator and legal adviser to Minnesota Democrats. Lillehaug was appointed by DFL Gov. Mark Dayton to replace Justice Paul Anderson, who retired last month.
Lillehaug’s ties to the DFL stretch back to 1984, when he served as an adviser on Walter Mondale’s presidential campaign. Since then, Lillehaug has advised lawmakers in Washington in addition to arguing the historic recount trial in the 2008 Senate race between Al Franken and Norm Coleman and the automatic recount triggered after Dayton’s 2010 race against Republican nominee Tom Emmer. He went on to represent the Dayton administration during the proceedings leading to government shutdown in 2011 and to represent the DFLers position in court during the 2012 redistricting effort.
What’s more, Lillehaug has twice been a candidate for the DFL endorsement for public office, first for Attorney General in 1998 and two years later for the U.S. Senate. He didn’t receive the endorsement in either race, but Lillehaug came to be widely celebrated in political and legal communities for rarely losing a case.
But he says he’s happy to leave that all behind and step back into public service. “This was the first time I put on that black robe,” he said this week. “I really don’t have a problem leaving the political world, because when I raised my right hand and I swore the judicial oath, it was to decide cases based on precedent and principles and not on politics.”
Capitol Report sat down with Lillehaug to look back at his long career as an attorney, his work with Democrats over the years and his new role on the state’s highest court.
Capitol Report: You’ve been officially on the job for about a month now. What are your first impressions of working on the court?
David Lillehaug: My first impression – and I hope this doesn’t sound too presumptuous – is that I felt very natural and comfortable right away. I think that was maybe for a couple of reasons. First, the other justices have been so welcoming. It’s been a very collegial court historically, and I can see why, because everybody has been just very nice to me. The second reason is, I think this is the moment when I was ready for this.
Again, I hope that’s not presumptuous, but I was ready to return to public service and this really is a capstone to a career, so although it would seem very strange to be sworn in at 8 a.m. and sitting on the bench at 9 a.m., it really felt quite natural.
CR: You were on the bench your first day?
Lillehaug: I sat on a worker’s compensation case on my first day and was in the conference room with the other justices and voting by 10:30 a.m. I had a couple of weeks to get ready for that, because the courts furnished me with the briefs and the internal memoranda, but I was kind of thrown into the deep end of the pool and I found myself swimming.
CR: You have a long resume of work as an attorney, whereas many other justices had served as judges before moving up to the high court. How is it different from being on the other side of the bench so far?
Lillehaug: Yes, this was the first time I put on that black robe. One thing that has changed is time feels different. When you are in private practice, the volume of emails and calls and crises can been pretty overwhelming. Here there is time for thinking and contemplation. After all, you are only establishing rules and law that you hope will last more than 100 years. It’s a slower pace at one level, but intellectually it’s a very fast pace. There are a lot of lawyers who specialized in a very narrow area – I was never one of those – but even with some breadth of experience, the variety of cases that you get on the Minnesota Supreme Court is extraordinarily interesting.
In [my] first week we had a worker’s comp case, we had a case testing Minnesota’s drug testing law, we had a first-degree murder case, we had a case where a priest was accused of criminal sexual conduct, and a variety of others. That’s one of the things I’ve really enjoyed in the first month; I’ve learned a lot about different areas of law that were not in my wheelhouse.
CR: You come from a considerably more political background than some of your colleagues on the court. Do you think that kind of experience will be helpful in your new role?
Lillehaug: There are other associate justices here who had legal experience in the political arena, Barry Anderson and Christopher Dietzen among them. The justice that I succeeded, Paul Anderson, was very heavily involved in politics in the law. He says that will be a benefit for me, but I will let those things play out. I’m not prepared to conclude something after one month.
CR: How did Anderson say the experience would help you on the court?
Lillehaug: He says it gives you an understanding of government and how things work in the real world that is useful when you are deciding cases. The other thing, however, is that 90 percent of the work that I did as a litigator was not political in any way. I was U.S. attorney for four and a half years, but the other 25 years was in private practice representing businesses and families and individuals. A lot of the work that I did was in the trenches, the sort of work that lawyers do every day. And that’s the main thing I think I bring to the court, the experience of every day lawyering.
I do feel really fortunate to have worked on so many important cases in such a short timeframe. I had two days off during the Franken-Coleman recount, and that was Christmas Day and New Years Day. During the shutdown, I went to 70 hearings in the span of three weeks. What I found I liked most as an attorney was doing things people had never done before. I was really drawn to do things where there was not a lot of precedent.
CR: What kind of things are you looking forward to most in your new job?
Lillehaug: What I do wait for is the opportunity to write my first opinions, and they are in progress. My tendency in private practice was to have a pretty lean writing style. I try not to use five words if one will do. As Benjamin Franklin said to a friend, “I would have written you a shorter letter if I had time.” I appreciate that.… I’m really looking forward to the exchange with the other justices on what I should write. I think I would learn a lot that way.
CR: What will you miss about being attorney?
Lillehaug: It’s not that I didn’t enjoy private practice, it’s that it was just the right time for this. I was at a great firm, Fredrikson & Byron, so nothing against that, but the gravity of what the court is doing, and the chance to, after 30 years, not just advocate law but make law, it feels right.
CR: Are there any legal minds or thinkers that you model yourself after?
Lillehaug: One person I’ve tried to model myself after is somebody who is dead, who is no longer here with us. His name was Harry MacLaughlin; he was a justice on the Minnesota Supreme Court and he then became a U.S. district court judge here in Minneapolis, and I clerked for him for two years. He was a Scotsman and very economical both personally and in how he wrote. Walter Mondale also used to say that he was his best friend. He died in 2005, but he was a really fine judge.
CR: Will it be difficult to leave behind the politics?
Lillehaug: Not in the least. When you raise your right hand and you take the judicial oath, you are swearing to leave that behind, and I can and will do that. I really don’t have a problem leaving the political world, because when I raised my right hand and I swore the judicial oath, it was to decide cases based on precedent and principles and not on politics, and I’ll do that.
It feels great to return to public service. I was in public service as a law clerk and then as U.S. attorney from 1994 to 1998. I guess at some level, the work I did on election law was indirectly a form of public service, but to be able to serve on the state’s highest court to me is the capstone of public service.
CR: Do you think people read too much into gubernatorial appointees and their past political or personal connections?
Lillehaug: One thing I’ve already learned in one month is you might have certain expectations where justices are on an issue, and that doesn’t always turn out to be the case. Every governor knows that when you appoint a Supreme Court justice, you are not guaranteeing any particular results. You hope that they will analyze cases with an open mind and a good faith, and that’s the most you can hope for as a governor. We saw that with Chief Justice Sandy Keith back in the days of Rudy Perpich, we saw it with Chief Justice Eric Magnuson on the unallotment matter, and we’ve seen it in the U.S. Supreme Court many times.
