'I believe turnover in positions of power is good for representative government'

An interview with Minnesota Court of Appeals Chief Judge Edward Cleary on the eve of his retirement

By Jon Schmidt

Judge-Cleary-Edward-150Minnesota Court of Appeals Chief Judge Ed Cleary has served as a judge for nearly 18 years—nine and a half years as a Second Judicial District judge ( appointed by Governor Ventura) and close to eight and a half years as an appellate judge ( including six and a half as chief judge, appointed by Govs. Dayton and Walz). Before joining the bench, he worked in private practice while also acting as a public defender, and then was appointed Director of the Office of Lawyers Professional Responsibility by the Minnesota Supreme Court. He received his undergraduate and law degrees from the University of Minnesota. 

As he nears retirement after serving as a judge for nearly two decades, Chief Judge Cleary and I recently spent time reflecting on his esteemed career—including his U.S. Supreme Court argument—and discussed his future endeavors.

Jon Schmidt: You have served as a judge for almost 18 years (many years as a trial judge and more recently as a Court of Appeals judge). What have you found to be the most rewarding aspect of serving as a judge?

Chief Judge Edward Cleary: It may sound trite, but the most rewarding aspect of serving as a judge is making a difference in people’s lives. Trial judges have the opportunity to see that difference up close, with civil litigants and criminal defendants in particular. In addition, you are aware that you are not allowed any “bad” days where you act arrogantly or dismissively, as your courtroom may be the only opportunity that jurors, parties, and witnesses have to view the justice system. Appellate judges, on the other hand, make an even bigger difference in the community. Opinions often have an impact on many people, not just the parties before the court. Appellate judges need to be aware that they too need to treat appellate counsel with respect and patience. The qualities of an effective and respected jurist are the same in any courtroom.

Schmidt: You are still young, yet stepping down before you turn 70. Why are you retiring early? What do you plan to do during your retirement?

Chief Judge Cleary: I find it interesting that lawyers and judges find 67 young to retire. That said, I chose to retire at 67 for a number of reasons. 

First, I believe the Court of Appeals is operating at a high level. I can’t take credit for that. It is due to the judges, the law clerks, the staff attorneys and the judicial assistants. But it is important to me that the next chief judge inherit an outstanding operation. 

Second, I enjoy being an appellate judge as I take my leave. That may seem counterintuitive, but I have seen too many men and women in the law leave exhausted, unhappy, and even burnt out. I am one of the fortunate ones in that I have enjoyed every phase of my legal career, including serving as chief judge. 

Third, I believe turnover in positions of power is good for representative government and good for the judicial branch. In the final analysis, we are all replaceable. And I would like to leave while people are saying, “Cleary is leaving already?” as opposed to “When the hell is Cleary going to leave?” (Hopefully, no one is saying that already.)

As to my retirement, I am not completely sure of my plans. My wife is retiring after 33 years as a probation officer, so she has a similar challenge.

I will never be far from the law. I may well come back as a senior judge on the Court of Appeals or I may serve the law in some other capacity. In any case, retirement will include traveling with my wife and friends and acquiring a rescue dog.

Schmidt: You argued at the United States Supreme Court (R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)). Tell me about that experience. Where do you keep your quill?

Chief Judge Cleary: The two years from June 1990 (when I was assigned the case of R.A.V. as a public defender) to June 1992 (when the United States Supreme Court issued the opinion) were tumultuous to say the least. When the dust settled, perhaps the most satisfying result was that a case that we (attorney Michael Cromett worked with me on the case) had lost 7-0 in the Minnesota Supreme Court, we won 9-0 in the United States Supreme Court. I still enjoy the symmetry of that result. 

Preparing for oral argument, after the briefing had been completed, was an experience in itself, as I participated in a moot court argument before five accomplished law professors at Georgetown with 150 students in attendance. The stress from that two-hour experience was a prelude to what was to come.

The media coverage was beyond intense. Representatives from the major networks, cable stations, and radio stations all interviewed us, and the New York Times, Washington Post and USA Today all sent reporters to St. Paul. 

On the day of the oral argument, the courtroom was packed, and the families of the justices were there, along with members of Congress. I felt fully prepared and, feeling that way, I felt a calmness that I have seldom experienced in highly stressful situations. As the oral argument continued, all of the justices asked questions, except Justice Thomas, who was new to the Court then. That surprised me, given the backdrop of a cross-burning and the hate-filled message it conveyed.

Seven months later, I was in Delphi, Greece when the opinion finally came down. That was an exciting moment, as was appearing on the Today show via satellite the next day from Athens to discuss the outcome.

As to the quill, I currently have that at home in a frame with the briefs. In 2017, I donated almost all of my R.A.V. material to my alma mater, the University of Minnesota Law School. I taught there for 12 years as an adjunct professor as well, so my ties to the school continue and I am quite pleased to have the material held there. Now that I am retiring, I plan on donating the balance of the R.A.V. collection to the law school, including the quill.

Schmidt: Other than being a judge, what is a job that you wish you had?

Chief Judge Cleary: It is perhaps more of a calling than a job, but like many in the legal profession, my interest, other than in practicing law or serving as a judge, would be to make a living as an author of books, fiction or nonfiction.

R.A.V. opened the door for me to be a published author and that is a story in itself. After the Supreme Court accepted review of the case, I saved everything: notes, phone messages, correspondence, etc. Then I went to a bookstore (remember those?) and bought a book on how to properly submit a nonfiction book proposal. I put together a packet and sent the proposal to pre-selected editors at the six biggest publishing houses. Sometimes it helps to be naïve. One Saturday morning in the spring of 1992, I received a phone call from an editor at Random House (the biggest publishing house in the world at the time) named Joe Fox. Joe was a bit of a legend, having edited many books, including In Cold Blood and Gideon’s Trumpet. Joe apologized for not getting back to me earlier(!) and told me he was interested in my book proposal and that he would recommend acquisition to the Acquisition Committee. A week later he called me and said he had good news and bad news. The good news was that Random House was interested in publishing the book. The bad news was that the United States Supreme Court had to agree with me. 

The day after the opinion came down in late June 1992, I agreed on the terms of a book contract with Joe Fox from my hotel in Delphi, as Joe read the article on the opinion from the front page of the New York Times. It took me 10 months to prepare the manuscript, which I did primarily at night and on weekends since I was practicing law during the day. Random House released the hardcover, Beyond the Burning Cross, in 1994; the paperback in 1995; and as an e-book in 2011. Joe and I talked about additional books, but then Joe died at his desk in 1995 and I lost my champion. I took that as a sign that my career at 42 remained in the legal world, not in the publishing world. 

When I went to Joe’s funeral in New York City, and the reception for his authors following that event, I found myself standing in a room with Anthony Lewis, John Irving, Phillip Roth, E.L. Doctorow, and other authors of that stature. A memorable coda to my “other” career.

Schmidt: As chief judge for the Court of Appeals, you have sat on numerous Special Term panels. Can you describe the Special Term of the court, the issues you address, and the process? What can attorneys do to better position their case to be helpful to the panel?

Chief Judge Cleary: Every Tuesday morning at 10:00 a.m., as chief judge, I chair a revolving panel of three judges to hear Special Term matters. All three of us will have received a bench memorandum and a proposed order on each matter on the calendar on the previous day, prepared by a member of our central staff attorneys or, occasionally, by one of our law clerks. The number of cases on the calendar varies from three to 12, with six or seven cases constituting the usual workload.

Special Term involves the “gate-keeping” function of our court. Here, we decide if an appeal will go forward or a writ will be issued or denied. We meet in our main conference room with judges on one side of the conference table and members of central staff on the other. Each matter is presented by the staff attorney, who makes a recommendation to the judges and answers their questions. The seven central staff attorneys all have their own area of expertise and they are experienced, professional, and a great help to our judges and to our law clerks.

The decision is made to either agree to the proposed order, amend the order, or, rarely, issue an opinion, which is often published.

As to what appellate counsel can do to improve their submissions, counsel should keep in mind that since the Special Term panel does not have the benefit of full briefing and oral arguments, it is helpful if relevant materials from the record are identified or submitted in an addendum. As to petitions for discretionary review, counsel should explain why effective relief would be unavailable on appeal from a final judgment.

Schmidt: There has been an external push about increasing the number of opinions that the Court of Appeals publishes. How is it decided which opinions are published and not published? Do you feel that the number of published opinions should increase?

Chief Judge Cleary: This has been an ongoing issue for some time and there appears to be some fundamental misunderstandings about how the Court of Appeals operates.

First, the judges on our court are not opposed to the publication of opinions and, in fact, enjoy releasing published opinions. We teach our incoming law clerks to review files and prepare bench memorandums with a recommendation to consider publication when the area of law is unsettled or where there is no binding precedent. We reject the idea that we are at all times an error-correcting court and we are quite aware that we, on occasion, are a policymaking court as well. The judges on our court encourage appellate counsel to argue for publication in their briefs or at oral argument. Finally, the judges make a decision to publish or not publish and the other judges are allowed to weigh in as the proposed opinion is circulated. 

Second, we are aware that the Minnesota State Bar Association is supporting a legislative proposal to repeal Minn. Stat. §480A.08, subd. 3(c) which sets limitations on what opinions may be published. While we take no official position on that proposal, we would likely set up a committee to evaluate new guidelines for publication if the statute is repealed, and we would likely provide MSBA representatives with an opportunity to comment on any proposed rules.

Our Court does not take issue with those who would like more published opinions. We take issue with those who believe that we are intentionally avoiding the publication of opinions for some unknown reason. Many opinions are fact-based (unemployment cases come to mind), or are not properly briefed on the issue that may warrant publication, or involve binding precedent or well-settled areas of law. There are a number of hurdles to dramatically increasing the number of published opinions. That said, the judges on our court are quite aware of the desire of certain members of the bar to have the number of opinions we publish increased, and the court will continue to evaluate opinions closely with an eye toward publication, short of setting an artificial annual “goal” publication rate. 

It is prudent to keep in mind, however, that if the bar is arguing that the statute violates separation of powers concerns, it does so in recognition of judicial independence.

Schmidt: You have spoken many times on the topic of wellbeing for lawyers. Why do you think mental health still has such a stigma in the legal field? What do you think judges and practitioners can do to take care of themselves and each other?

Chief Judge Cleary: My father was an attorney and I remember quite clearly an incident that occurred when I was 12 years old. His closest friend, also an attorney, took his own life and left five children under 15. My father was deeply saddened that he had been unable to help his friend. As the years went by, I heard of other such stories. One such story involved a lawyer I knew with four young daughters who took his youngest daughter to kindergarten for her first day of school and took his life that night. I was not aware he had been struggling with his mental health and he apparently believed he had done all he could by making sure his youngest child had begun school. I am sure many lawyers and judges know of such stories.

When I became director of the Office of Lawyers Professional Responsibility in 1997, I was reminded of how inadequately the legal profession dealt with mental health issues. Several suicides occurred in relation to discipline. We had an incident where an attorney called the office while holding a loaded handgun, threatening suicide, and we stalled him long enough for the police to arrive and talk him down.

All of this has heightened my concern over how members of the legal profession deal with mental health and wellbeing. It cannot be swept under the rug. We place great emphasis on hard-charging success—but at what cost for those who, through no fault of their own, can’t handle the pressure or are genetically predisposed to clinical depression and other illnesses?

It seems to me we have an obligation to look after one another, if only because we share a dedication to the legal profession. Untreated mental illness is a tragedy waiting to occur. And we are better than that.

Here, in Minnesota, while I was director, we began to address the problem by expanding LCL into a lawyer assistance program that seeks to help not only lawyers and judges who have chemical issues, but those who deal with mental health issues as well, with an emphasis on helping family members of these lawyers and judges too. Helping family members cope with the ill family member is critical to long-term success.

It will take time to lessen the stigma of mental health. In the meantime, judges and practitioners should have heightened awareness of the need to find balance in their own lives and to reach out where they see others in the profession in need. Better to act than to risk the devastating loss and regret my father felt all those years ago.

Schmidt: What is a moment in your legal career that altered the trajectory of your life or career?

Chief Judge Cleary: Undoubtedly, my involvement in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) altered the trajectory of both my life and career.

My participation on the Franken-Coleman Senate canvassing board, in addition to being a very memorable experience, had an impact on my career in the sense that my visibility rose substantially as a result of that involvement. I heard from many people from around the State who had followed the hearings assiduously online. Over a decade later, those hearings still come up in conversation with members of the public.

However, the lead-up to Republican Party of Minnesota v. White, 536 U.S. 765 (2002), decided by the United States Supreme Court 10 years later, also had a sizeable impact on me.

Shortly after the Minnesota Supreme Court appointed me director of the Office of Lawyers Professional Responsibility in 1997, I was asked to give an advisory opinion as to whether I would enforce the announce clause of then-Canon 5 of the Code of Judicial Conduct, which prohibited a candidate for judicial office from announcing his or her views on disputed legal or political issues. After conducting my own research and discussing the matter with several lawyers in the office, I informed the attorney that I found the announce clause problematic and likely unconstitutional, and told him that as a result, as director, I would not enforce it. He gave the letter to the Star Tribune, which reported that I found the announce clause unconstitutional.

Consequently, a number of justices serving on the Minnesota Supreme Court at the time were unhappy with me. And I was unhappy with them for not taking steps to delete the clause and substitute language accepted by the majority of states at the time. For the second time in a decade, I found myself at odds with justices of the Minnesota Supreme Court over a First Amendment issue. Since I was appointed by the Court, there was a possibility that the Court would ask me to step down as director. There was also the possibility that I would step down of my own volition. Neither occurred. I served as director of the Office of Lawyers Professional Responsibility from 1997-2002 and I am glad I did, as I enjoyed working with the members of that office and my relationships with the justices improved.

In 2002, the United States Supreme Court struck down the announce clause in Republican Party of Minnesota v. White as a violation of the First Amendment.

Schmidt: When they write the history of the Court of Appeals, what do you want people to say about the years you were chief? The Cleary Court, if you will.

Chief Judge Cleary: Retired Chief Judge Edward Toussaint and I are the only chief judges in the history of the court, thus far, to have completed at least 2 three-year terms. I point that out because I believe it takes several terms before a court perhaps reflects the direction a chief judge has taken.

During my six and a half years as chief judge, I would like it to be said that our court, even with the high turnover of judges, remained professional, collegial, and hard-working at all times and that we operated successfully by consensus. We have always attempted to keep close communication with the members of the bar to facilitate discussion and to avoid misunderstandings.

As to the tenor of the opinions we have issued over these years, I believe it has been outstanding. Keep in mind that the judges come from very different backgrounds and have different writing styles and that we don’t sit en banc, primarily because of volume pressures. As a result, an opinion issued by a three-judge panel doesn’t always reflect every judge’s opinion on our court, but the vast majority of our opinions are approved in circulation unanimously or by a substantial majority of the court.

As chief judge, at Special Term and elsewhere, I have believed that, when statutory authorization is available, and a proper request for relief is submitted, our court should be heard. This has resulted in opinions and orders that perhaps other chief judges would not have issued. But I believe we should keep the gate open as much as possible and that our court should not hesitate to use its authority when the case presented calls for it.

Looking forward to issues facing the Court of Appeals in the years ahead, the good news is that the 19-member court will not need to be expanded anytime in the near future, given the stable numbers of filed appeals. The issue of new rules surrounding publication of opinions will need to be addressed if the Legislature repeals Minn. Stat. §480A.08, subd. 3(c).

The court will continue to work with the Minnesota Supreme Court and other members of the Judicial Branch in addressing issues regarding cybersecurity and other technological advances, keeping in mind budgetary concerns.

All in all, the new chief judge will inherit one of the nation’s finest intermediate courts of appeal, including 18 other hard-working judges and an outstanding central staff and support staff, as well as gifted law clerks. The citizens of our state should be very proud of our Court of Appeals. I know I am. 

JON SCHMIDT is a senior assistant Hennepin County attorney supervising the Appeals Unit within the Special Litigation Division, focusing exclusively on criminal appeals. Prior to joining the Hennepin County Attorney’s Office, Jon was a shareholder at Briggs and Morgan, P.A., with a varied appellate and litigation practice. He lives in St. Paul with his wife (Ramsey County Judge Sara R. Grewing) and their two kids.