Minnesota’s legal community mourns Judge Diana Murphy

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Diana Murphy was a judge’s judge.  The 8th Circuit Court of Appeals judge was brilliant, incisive and to say she worked hard would minimize her ethic.

“She was a specialist in being a generalist,” said Judge John Tunheim, chief judge of the U.S. District Court in Minnesota. She was passionate about making the right decisions and was an example for Tunheim by her hard work and her passion for justice, he said.

She was remarkably gracious and visionary, said Judge James Rosenbaum, now retired, and that was at a time when prominent women were not as broadly seen as they are now. “She was first and first and first and first.”

Murphy, 84, died May 16 at her home in Minneapolis. She earned her B.A. from the University of Minnesota in 1954 and her J.D. from the same school in 1974, where she was an editor of the law review.

She practiced law at Lindquist and Venum from 1974 to 1976, when she was appointed to the Hennepin County Municipal Court. It later merged with the District Court, where she served from 1978 to 1980, when she was appointed by President Jimmy Carter to the United States District Court. She was elevated to the 8th U.S. Circuit Court of Appeals in 1994 by President Bill Clinton and took senior status in 2016.

She was the first woman to serve on the 8th Circuit and was the only one until Judge Jane Kelly joined the bench in 2013.

Which makes her also a women’s judge. “She was very much at home in her role” as the first woman, said Minnesota Supreme Court Justice Margaret Chutich, a law clerk from 1984 to 1986. Chutich recalled a trial where everyone working in the courtroom was a woman. Murphy stopped the proceedings to take note of the occasion. “She was a great example for other women. It was wonderful to see a woman do the work and do it so well.”

The Infinity Project grew from Murphy’s example and legacy, said founder Lisa Brabbit. That organization was started in 2008 to increase gender diversity on the 8th Circuit bench. As a sitting judge, Murphy was silent about the project but never concealed her interest in supporting women lawyers. She was the inaugural recipient of the Diana E. Murphy Legacy Award, which goes annually to a woman jurist.

Murphy was also a law clerk’s judge. She had 99 clerks over the years and a good portion of them attended her funeral on May 22.

“She loved to talk to her clerks about trials,” said Minneapolis attorney Michael Unger who clerked for her in her second year on the federal bench. She also invited them to chambers discussions and would talk with the clerks about the lawyers’ effectiveness. “It was a tonic for a new lawyer.”

She was also a lawyer’s judge, insightful in her questioning and thoroughly prepared, and expecting the same from them. She expected lawyers to be “substantive” in their presentation, Unger said, and if they weren’t getting to the heart of the matter the judge would interrupt, he said. It wasn’t lawyers’ theatrics that impressed her, it was their ability to answer tough questions, Unger added.

Murphy was also the public’s judge. She wanted everybody to be able to read and understand her opinions, Chutich said.

She also wanted the human stories behind the case law to be aired when possible. She was compassionate when she could be, Chutich said, and was good at settling cases because she could figure out ways to meet the human, maybe extra-legal, needs of the litigants.

Murphy was exemplary in her civic engagement, which was extensive but never crossed the line of what was proper for a sitting judge, Tunheim said. She was head of the United States Sentencing Commission from 1999 to 2004, where she attempted to temper the “draconian” sentencing guidelines, said 8th Circuit Judge Roger Wollman at her funeral. In 2005, in United States v. Booker, the U.S. Supreme Court restored to judges some discretion in tailoring an appropriate sentence.

Murphy was also involved in forming and served as president of the Federal Judges Association, Wollman said. In 2000, the American Judicature Society awarded her the 19th annual Devitt Award in recognition of contributions in scholarship, the judicial process and the administration of justice. She served as a trustee simultaneously for both the University of St. Thomas and St. John’s University, which caused Rev. Dennis Dease to make the sign of the cross as he was delivering her eulogy. (The Tommies and the Johnnies are rivals, he explained, as if everyone didn’t know that.)

Murphy may have been a generalist but she was interested in civil rights, constitutional law and particularly the rights of Native Americans and tribal sovereignty, Chutich and Tunheim told Minnesota Lawyer. The judge participated in two cases that embodied the classic and continuing disputes over Native American rights and natural resources. They also embodied her jurisprudence.

Minnesotans will remember the vehement disputes in in the 1990s over fishing rights at Lake Mille Lacs. The Mille Lacs Band of Ojibwe said state law and regulations violated the treaties between the band and the United States by preventing them from using spears or nets. In a thorough examination of history, Murphy used canons of treaty interpretation to hold that an 1850 order did not terminate the band’s rights under an 1837 treaty to fish with nets or spears. She also rejected other arguments that the U.S. had abrogated the treaty rights to hunt and fish. The 8th Circuit affirmed, as did the U.S. Supreme Court in a 5-4 decision in 1999.

In 2015, the 8th Circuit returned to the treaty in United States v. Brown, written by Murphy and affirming Tunheim, who had dismissed indictments under the Lacey Act for illegal fishing on Leech Lake and then selling the fish to non-Indians.

Murphy wrote, “When seeking to determine the meaning of Indian treaties, ‘we look beyond the written words to the larger context that frames the Treaty, including the history of the treaty, the negotiations, and the practical construction adopted by the parties’ [citation omitted]. We interpret such treaties liberally, resolving uncertainties in favor of the Indians, and we ‘give effect to the terms as the Indians themselves would have understood them.’” History, the treaty and evidence of the parties’ understanding of the treaty indicated that it encompassed the right to sell fish, Murphy wrote.

The humanity of the conflict did not escape the judge.

“Hunting, fishing, gathering, and trapping were essential to the survival and ways of life of Indian tribes throughout North America,” she pointed out. Those activities “’were not much less necessary to the existence of the Indians than the atmosphere they breathed,’” she wrote.