Lillehaug sworn in June 3 to replace retiring Anderson on Minnesota Supreme Court

by Howard Lestrud
ECM Political Editor

With his 86-year-old father and 85-year-old mother in attendance, attorney David Lillehaug wore a black judicial robe for the first time in his legal career and was sworn in as an associate justice of the Minnesota Supreme Court.

New Minnesota Supreme Court Associate Justice David Lillehaug put a judge's robe on for the first time on Monday, June 3, when he was sworn in as a justice. He previously had practiced law for 34 years. Lillehaug was appointed to the high court on March 26, 2013, by Gov. Mark Dayton. (Photo by Howard Lestrud, ECM Publishers)
New Minnesota Supreme Court Associate Justice David Lillehaug put a judge’s robe on for the first time on Monday, June 3, when he was sworn in as a justice. He previously had practiced law for 34 years. Lillehaug was appointed to the high court on March 26, 2013, by Gov. Mark Dayton. (Photo by Howard Lestrud, ECM Publishers)

Lillehaug, 59, took the oath of office at 8 a.m. Monday, June 3, from Chief Justice Lorie Skjerven Gildea in the Minnesota Judicial Center, across from the State Capitol in St. Paul.

Lillehaug’s wife Winifred Smith and daughter Kara Lillehaug, a student at Tufts University in Boston, were also in attendance at the private ceremony.

A public investiture, or installation, is scheduled for Friday, June 28, at the Thrivent Financial Auditorium in Minneapolis. Minnesota’s senior senator, Amy Klobuchar, and former Vice President Walter Mondale will be featured speakers at the investiture.

Lillehaug, formerly of Edina and now of Minneapolis, was appointed to the high court on March 26 by Minnesota Gov. Mark Dayton.

Putting on the judicial robe was a “wonderful moment,” Lillehaug said during his first public interview since becoming a member of the Minnesota Supreme Court.

Just moments after being officially sworn in as successor to Associate Justice Paul Anderson, who retired at age 70, Lillehaug was on the bench at 9 a.m. hearing his first argument as one of seven justices of the Supreme Court.

Justice Lillehaug and his colleagues heard one argument Monday, a workers compensation case, and expected to hear two more on Tuesday. Lillehaug asked the first question of the attorneys appearing before the Supreme Court.

Following the court session, justices gathered without a clerk in a conference room and discussed what they had just heard. Usually, one justice volunteers to write a majority opinion, Lillehaug said.

This time together represents a significant moment of getting to know how people look at problems and solve them, Lillehaug said. He called it collegiality. No opinion is final until it is released by the court, he said.

On Monday, Lillehaug went to lunch with Gildea and other justices for a first-day lunch, and then he returned to his chambers to get ready for cases scheduled for the next day.

A former U.S. Attorney during former President Clinton’s administration, Lillehaug said he believes he will bring a balanced approach to criminal law. He said one of his strengths in practicing law has been connecting with victims.

Lillehaug has logged 34 years as a lawyer, graduating from Harvard Law School in 1979. Lillehaug was born in Waverly, Iowa, and raised in Sioux Falls, S.D., where his father was a band director at Augustana College.

Lillehaug is the only lawyer in his family. He has a brother who is a physician at Regions Hospital and a sister who is a teacher at Calvin Christian School in Edina.

Some of Lillehaug’s early law experience came as a clerk for a federal judge, the late Harry MacLaughlin. “He was a big influence on me in drafting opinions,” Lillehaug said. MacLaughlin previously served as a justice on the Supreme Court.

The roots of his legal career started when he was in high school, competing as a high school debater, Lillehaug said. One of his debate topics centered on the jury system. “That’s when I first started hanging around the law school library researching for high school debate,” Lillehaug admitted.

Lillehaug was recently inducted into his high school hall of fame. He attended Sioux Falls Washington High School.

Becoming a judge was always in the back of his mind, he said. Now as a Supreme Court justice, Lillehaug said he has crossed the divide and must leave behind the world of advocacy. You swear a very important oath to be fair and impartial. You’re not arguing a case, you are deciding a case, he noted.

In preparation for his new position on the Supreme Court, Lillehaug said he read many court cases very closely. He pointed to a box containing 2 feet of legal briefs. He said he has been studying how statutes and rules govern.

Currently, the Supreme Court reviews petitions in approximately 800 cases a year and accepts review in about one in eight cases. These cases can come from the Minnesota Court of Appeals, Workers’ Compensation Court of Appeals, Tax Court, Lawyers Professional Responsibility Board and Board of Judicial Standards.

Election contests and appeals for first-degree murder cases are automatically appealed to the Supreme Court.

Lillehaug is no stranger to the Minnesota Supreme Court, being involved in some high profile cases that landed in the court’s jurisdiction. Lillehaug represented Sen. Al Franken during the recount of 2008-2009. He also submitted briefs in the Dayton-Emmer governor’s race recount of 2010.

He represented the University of Minnesota in the case of Jimmy Williams vs. Tubby Smith, a coach hiring disagreement. Lillehaug was also involved in legal cases surrounding the government shutdown two years ago.

Lillehaug’s appointment as U.S. Attorney was made by Clinton upon the recommendation of Sen. Paul Wellstone. Lillehaug said he first met Wellstone when he coached him for debates with then Sen. Rudy Boschwitz.

Even though his time as a Supreme Court justice just began, Lillehaug has been busy studying past opinions, many cleared out before Anderson retired.

“It’s a real honor to succeed him,” Lillehaug said. Anderson succeeded John Simonet of Little Falls, who Lillehaug calls “one of the greatest lawyers Minnesota has produced.”

Looking at his predecessors’ service records, Lillehaug said, “I need to work very hard.”

As a member of the Supreme Court, Lillehaug said he will be challenged to write clear opinions that set down rules of law that lawyers will follow. There will be disagreements and dissent, he said.

“We are not writing for today or tomorrow, we are writing for decades,” Lillehaug said. Looking at an 1859 ruling on his desk, Lillehaug said the court will be writing opinions for the next century. Opinions must be carefully and thoughtfully written, he said. Being a good legal writer is important when serving the high court, Lillehaug said. He said MacLaughlin and others  “tore his writing apart” in the early days but this critique helped him become a better writer of opinions, he said.

The Supreme Court has a broad administrative role where justices serve on committees formulating rules for civil law, criminal law and family law.

Lillehaug hopes to continue connecting with the community as did his predecessor, Anderson.

“He was an ambassador for the court and the judicial system,” Lillehaug said. Lillehaug said he connected with the community often during his service as a U.S. Attorney.

Looking forward to hearing more cases, Lillehaug said he likes lawyers and believes they are hardworking, ethical people.

“They care more than just for their billable hours,” he said.

Politics has been part of his life but he said he will be far away from it now as he serves the Supreme Court. He will stand for election, however, already in November 2014.

“If you do a good job on the Supreme Court, you will be re-elected,” Lillehaug believes. In writing court opinions, Lillehaug said a philosophy may emerge but it will take time. “It’s important to listen and learn from your colleagues,” he said.

Equal justice under the law is what Lillehaug believes must be accomplished.


Howard Lestrud can be reached at [email protected]

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