Minnesota Lawyer
In one sense, her rise was meteoric. At age 64, Susan Segal was elevated to chief judge of the Minnesota Court of Appeals mere months after first donning a robe, for the first time in her life, as a member of that court.
But in another sense, it’s been a long ride. For 12 years, Segal managed 110 or so employees as Minneapolis city attorney. There she got her share of both plaudits and jeers for her criminal-justice reforms and, as the Star Tribune once put it, for taking stands that some saw as “more political than legal.”
Before all that she was an assistant Hennepin County attorney, a solo practitioner and partner at Gray, Plant, Mooty, Mooty & Bennett, P.A.
Judge Segal recently took almost an hour out of her schedule to sit with Minnesota Lawyer for an interview. What follows is an edited transcript of that wide-ranging conversation.
Q: It would almost be weird not to ask the former Minneapolis city attorney not to offer your thoughts about the civil disturbances in your city. What would you share with us on that?
A: My heart is broken. It is so difficult. And even though I am not the city attorney any longer, I know the stress and pain that my former colleagues at the city are going through and that the people not only in Minneapolis, but across the state and across the country, are feeling.
I spent a lot of time as city attorney working hard with the police leadership and city leadership on reforms. It’s really difficult. It’s really difficult.
Q: Your job was sometimes to defend Minneapolis cops in police brutality lawsuits. What can you say about what you learned then about the city’s police culture?
A: I can’t really comment on that, except to say that there are really good people, working really hard, who have been just lion-hearted in their work and efforts.
Q: Minneapolis Mayor Jacob Frye one described you as “a small Jewish woman with a mountainous personality.” Did you like that description?
A: I am not going to shy away from that. I think it’s a description my mother [former state Rep. Gloria Segal] would have been very proud of. Certainly, I am a shadow compared to her.
Q: How does one keep a mountainous personality in check on the bench? Or do you feel like you really need to?
A: When I applied to be on the Court of Appeals, I thought about that. It is a very different role from the one that I held at the city and it requires me to call on different skills and personality traits.
But it’s important, I think, for judges to bring themselves to their work and to how they view and interpret cases. Obviously, we’re guided by precedent and the standards of review. But I think you can be yourself and be a judge at the same time.
Q: One legal scholar I spoke with has expressed a little concern about recent state Supreme Court appointments not having enough appellate experience. Is there any reason to worry that the new chief judge of the Court of Appeals lacks appellate experience?
A: The chief judge role is really administrative. I mean, I still am on calendars and I would not have accepted this position if it did not involve a lot of continuing appellate work. But otherwise, it’s an administrative role.
I think having somebody with my administrative background and experience — particularly, just anticipating budget cuts to come — who managed the Great Recession [for the City Attorney’s Office] will come in quite handy.
Q: You happen to be the wife of the governor’s MMB Commissioner Myron Frans. Have you run into any raised eyebrows about the governor so rapidly transitioning you from a new Court of Appeals pick to chief judge? Is that stuff hard to handle?
A: I have not experienced that at all. Our former Chief [Judge Edward] Cleary actually talked to me about applying. I had no intention, when I first got on the court, to do that. But governors typically have appointed chief judges who they have appointed to the bench, so it’s not unusual at all.
[Cleary] became chief not long after he ascended to the Court of Appeals. And our current [Supreme Court] Chief Justice [Lorie Gildea] was appointed as chief justice, with no appellate experience, either, and she has done a terrific job in that role.Q: You’re coming on board just as the COVID-19 crisis has the courts are in a whirl trying to figure out how to operate. What are the big challenges you face personally in managing that?
A: These are not the circumstances that I would have chosen. Because it’s always better to just walk down the hall and talk to somebody, to get to know people and get a better feel for the staff, the law clerks, as well as my colleagues. It’s just going to take a little longer. But I am setting out to do at least phone calls or Skype calls with everyone on the court.
I would like to do a visioning process, particularly with this change in the publication rules. Where should we be in five years? What are the priorities for us to work on, in terms of efficiency, making sure the quality is there and that we are engaging in the best decision-making? That’s just going to be a little slower because people only have so much bandwidth.
One great thing is that we have the technology. They only invested in it about a year ago. I credit our Court Administrator Miriam Friesen and Chief Cleary with that. Everybody has VPN and we’ve been functioning very effectively through this remote period. The WebEx oral arguments, I don’t think anybody thinks is ideal. But we’re getting oral arguments and they’re working pretty well.
Q: Is there some opportunity that you see for maybe permanent changes that use those technologies? For civil commitment hearings strike me as a possibility.
A: I think it creates that opportunity. I know the District Courts are hard at work and innovating and we’ll be able to utilize the things that work well, or better, than the old ways that we’ve been doing things. So I do think it creates that opportunity.
Q: I always wonder what’s going on behind the scenes when the Supreme Court overturns a Court of Appeals opinion. Have you run into an instance where one of your cases has been overturned? Is that a big blow to the ego?
A: It has not happened yet, although I am sure it will. It’s the same, I think, as being a litigator and thinking your side of the case is right.
But also, we’re an intermediate appellate court. So we may be following precedent and can’t change that precedent. We can interpret it and say under these particular facts, this case should go this way or that under whatever the standard of review is, of course. But the Supreme Court gets to change the rules.
So we’ll see. We’ll see! Because that they will definitely come.
Q: You let it be known that expletives escaped your lips when you found out the governor would assign you to write an essay as part of the Court of Appeals interview process. You wrote about Gideon v. Wainwright, one of the great American judicial decisions. What do you love about Gideon?
A: The recognition that if you don’t have equal access, you can’t have equity. If you don’t have access to a talented, dedicated defense lawyer, there can be no justice for you. Even though judges try really hard, I think, with prose litigants — particularly in the criminal justice field — you need a really good defense lawyer.
We’re pretty lucky in the state of Minnesota to have a skilled Office of the Public Defender. And I will say that applies to the Appellate Public Defender’s Office.
Looking at it from the appellate viewpoint, there are huge penalties if an issue is not raised in the District Court. Now, there are workarounds. But it’s a tougher burden to overcome with issues being raised in post-conviction proceedings.
It’s impossible to choose the most important U.S. Supreme Court precedent. But that one seemed to me to be such an important and critical decision in trying to deliver what our constitution requires for criminal defendants.
Q: What’s your best advice to lawyers preparing to stand at the podium in your court?
A: Bring forward your best arguments. Think through what you want to say and make sure you get those points out. We really want to hear from the lawyers: Why should they win? How do they respond to the other side? How does the standard of review factor in?
It’s interesting. Oral arguments do make a difference and they are helpful. So think about what are the most important points you want to make. It’s a very conscientious, prepared bench. Everybody’s read the briefs and is up to speed on the issues. So using that as a starting point, really use your time effectively — because it’s a short period of time. It goes by really fast.
Q: So you’re no adherent to the theory I’ve heard expressed that oral arguments don’t really matter, that it’s all about the briefings and submissions?
A: I think they can be really helpful in complex cases. I really do. They can help us understand your client’s position better. Maybe there’s something that translates better from the oral arguments than the way something was presented in a brief.
Now, in most cases, if you were going to win or lose, is it going to flip it? No. But I think it can be very helpful. And we do have questions, because sometimes things are not briefed as clearly, or we’ve got other issues in our minds that maybe were not presented first and foremost. So I think it can be helpful. Certainly, I think the judges all look forward to lawyers who are well-prepared and good advocates presenting their cases and being able to have that dialogue back and forth.
Q: Do you think that City Attorney or Assistant County Attorney Susan Segal would be nervous walking into the courtroom of Judge Susan Segal?
A: I hope not! I don’t like intimidating judges, so I hope not.
Q: You’re not an intimidating judge?
A: I hope not. I mean, if you ask my kids, I guess I can be intimidating. But I hope not.
Q: What are your thoughts about the man you replaced, Chief Judge Cleary?
A: I didn’t really know him when I got appointed. I respect him greatly. He’s a great jurist. He’s very smart. I think he did a really wise job as chief judge. He created this court administrator’s position that I am certainly really grateful for. I just respect him a lot. I think he did a really good job.
Q: What do you hope will be different about your court than his or his predecessors’ courts?
A: I don’t know that I hope it’ll be different. I would like to continue Judge Cleary’s style and keep moving forward. I think there’s work to be done to make sure we’re engaging in greater outreach and trying to increase diversity. But otherwise, I don’t see a need to be different from the chief judge just to keep moving forward. It is a really talented court.
One challenge of this COVID, once we’re heading back towards normal, will be making sure that the collegiality of the court continues after getting people back into the buildings full time. We have to be able to do that in a really respectful way and maintain strong relationships and friendships through it all. I think that’s something we have to anticipate and work through.
Q: What have you learned to love about this job? And what have you learned not to love so much?
A: [Laughs.] It’s almost like a crash course of being back in law school — reading cases, reading transcripts and the record in the cases in front of us, thinking about the issues. And working on my writing. That’s in some ways the most humbling thing. You realize how those muscles are a little bit out of shape. I did a different kind of writing [as city attorney]. Most of the time, I did edit the briefs myself in some of the major cases. So I did write.
But really thinking about clean, concise prose, that I have really enjoyed. But, oh dear! Getting some of the comments that come back on circulating opinions, it’s like, “Oh, yeah, I didn’t really let this be circulated written quite this way, did I?” That’s humbling.
Q: Does that answer encompass about what you’ve learned not to love so much?
A: People warned me about this before I got on the court, but it is kind of an unrelenting schedule. Pretty much every week, there are six more cases. So you go, “Oh, I got these opinions cleaned up.” And then, “Oh! There’s four more waiting for me to edit!” So I think that kind of weekly pace takes an adjustment.
And it is a very quiet building, even when everybody is inside the building. So that’s been an adjustment for me as well. But it is a great group of people and I really, really am grateful for the warm welcome that I’ve received. I’m enjoying getting to know people at the court.
Q: What kind of chief judge do you hope to become?
A: I’ve always kept service in mind first and foremost. So I want to help support the mission of the Court of Appeals and be creative about how to further that mission and continue the strength of this court.
We are the final decision makers in 95% of all cases that get appealed. That’s a heavy responsibility. So it’s making sure that the court has the resources it needs to maintain quality and to put the time and thought into each case. Because each case is important to the parties — even if it’s not setting some new earth-shattering precedent.
