2021 Attorneys of the Year: Shefa v. Attorney General Keith Ellison, et al.

Paul Nolan//February 18, 2022//

Fom left: Scott M. Flaherty of Taft, Stettinius & Hollister; Peter J. Farrell and Jason Marisam of the Office of the Attorney General

Paul Nolan//February 18, 2022//

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Delving into late 19th century source materials from the Minnesota Historical Society is not a routine part of the job for Scott M. Flaherty, an appellate attorney with Taft Stettinius & Hollister LLP in Minneapolis. It’s what was needed, however, when he represented Minnesota Supreme Court Chief Justice Lorie Gildea last year in a high-profile case defending the constitutionality of a statute governing the Minnesota Board of Pardons.

Flaherty represented Gildea, while Assistant Attorneys General Jason Marisam and Peter J. Farrell represented the attorney general’s office in the same matter.

The board of pardons process requiring a unanimous (3-0) vote dates to an 1896 constitutional amendment that took sole authority away from the governor. The Legislature followed voter approval with a law that required a unanimous verdict.

That law was challenged in 2020 by Amreya Shefa, an immigrant from Ethiopia who was found guilty of fatally stabbing her husband in 2013. She claimed she was sexually abused and was defending herself. Shefa, who was denied a pardon on a 2-1 vote, sued all three members of the pardons board seeking a declaration that the requirement for a unanimous vote was unlawful. DFL Gov. Tim Walz joined in arguing that his vote along with one other should be enough.

A District Court concluded that the unanimity requirement violates the governor’s executive pardon power. In May, the chief justice reached out to Flaherty to represent her in the Shefa case on appeal. A motion was filed for accelerated review, and in September, the Minnesota Supreme Court ruled that requiring a unanimous vote of the pardons board to grant a pardon is constitutional.

“Litigation regarding pardon decisions in Minnesota is extremely rare. There wasn’t a lot of precedent you could draw on. You can’t pull the top 10 cases involving pardon litigation and read them,” Flaherty said. His research took him to the Minnesota Historical Society to review legislative writings from the 1880s and 1890s.

“These cases don’t happen very often, and each one is unique,” Flaherty said. The question about pardon power in Minnesota had never been litigated before and I don’t think ever will be litigated again.”

Read more about Minnesota Lawyer’s superb class of Attorneys of the Year for 2021 here.

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