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Marshall and Minnesota — justice for the state

This is a boom time for Thurgood Marshall and drama in Minnesota.

The play Thurgood completed its successful 10-day run at the Illusion Theatre in downtown Minneapolis last month. The one-man performance, attended by many lawyers, judges, law students, faculty and others in the legal profession, featured local actor James Craven recounting the trials, tribulations, and triumphs of the late Supreme Court Justice Thurgood Marshall, the architect of Brown v. Board of Education, 347 U.S. 483 (1954) and progeny, and a man who reportedly argued and won more cases before the high court than any other attorney.

Next month, on May 12th, the documentary film about Justice Marshall entitled “Mr. Right: Thurgood Marshall and the NAACP” will be shown in Bloomington. The film will be presented by the Bloomington Human Rights Commission, at the City’s Civic Plaza, followed by a panel presentation featuring Chief Judge Michael Davis and Judge Donovan Frank of the U.S. District Court here, Judge Kevin Ross of the Court of Appeals and veteran civil rights leader, Josie Johnson, joined by the filmmaker Mick Cauotte.

Beyond the theatrical, the nation’s 96th Supreme Court jurist, and first African-American one, had a real-life connection to Minnesota. During his 24 years on the high court, he adjudicated more than 2,000 cases, wrote many important decisions, and participated in more than three dozen rulings in cases from Minnesota, either through the Minnesota court system or the Eighth Circuit Court of Appeals.

His footprint in those Minnesota cases is discernible. Research reflects that he authored only a pair of majority opinions in Minnesota-based cases, while writing or joining in several concurrences and a few notable dissents. The recent conclusion of the play about his life provides an opportune occasion to review the way his rulings affected the law in Minnesota while he was on the high court.

Marshall’s majorities

Justice Marshall’s two Minnesota majority decisions involved quintessential legal issues: personal jurisdiction and pre-emption, respectively. In both cases, he overturned lower court rulings in Minnesota.

In Rush v. Savchuk, 444 U.S. 320 (1980), he reversed a ruling of the state Supreme Court upholding jurisdiction in Minnesota over an action by a Minnesota resident who was injured while living in Indiana in a car accident in that state. The state court held that jurisdiction in rem was proper because the liability insurer did business in Minnesota. But Justice Marshall, writing for a 7- member majority, held that the assertion of in rem jurisdiction due to the carrier’s presence in their state violated Due Process because the defendant driver “hasno contacts with the [Minnesota] forum.”

Another reversal, this one of both the federal District Court in Minnesota and the 8th Circuit Court of Appeals, occurred in Hayfield Northern R. Co. v. Chicago & N.W. TR. Co.,467 U.S. 622 (1984). Writing this time for a unanimous tribunal, Justice Marshall held that the Federal Staggers Rail Act, 49 U.S.C. § 10903,et seq. did not preempt state law allowing a railroad shipping group an injunction pending initiation of eminent domain proceedings for abandoned railroad lines. Permitting a state court proceeding would not “frustrate the purpose” of the federal law, which amended the century-old Interstate Commerce Act.

Constitutional concurrences

Justice Marshall concurred in a pair of constitutional cases involving high-profile Minnesota matters. Similar to his two majority opinions, both of these cases also reversed lower court rulings in Minnesota.

Rules restricting the unlicensed sale or distribution of merchandise at the State Fair were upheld, as he joined in a partial concurrence and dissent, in Heffron v. Int’l. Society for KrishnaConsciousness452 U.S. 640 (1981). The court reversed a Minnesota Supreme Court ruling that the regulations violated the First Amendment rights of a religious organization seeking to distribute literature and soliciting funds while wandering the fairgrounds. The prohibition on unlicensed activities, promulgated by the agency that operates the fair, the court felt, “serves a substantial state interest” in “crowd control” and preventing “disorder [that] would inevitably result” from allowing such practices. But Justice Marshall joined a concurring and dissenting opinion of Justice William Brennan that would have upheld most of the regulations while opining that the proscriptive could be “more narrowly drawn … as it applies to distribution of literature.”

In a direct appeal from the U.S. District Court in Minnesota, the court reversed a ruling striking down the state Public Employment Labor Relations Act (PELRA) Minn. Stat. § 179A.01, et seq., as a violation of the First Amendment right of freedom of expression of faculty members of state community colleges inMinnesota State Board for Community Colleges v.Knight, 465 U.S. 271 (1984). Justice Marshall issued an opinion in which he did “concur in the judgment of the court but not its opinion” because he felt that the evidence did not “establish the kind of impairment of the ability of faculty members to communicate with administrators” of the college.

Dissenting decisions

But Justice Marshall made his main Minnesota marks in his dissenting decisions. He was a stalwart in the liberal branch of the court, which was at its zenith during his early years on the bench. As that wing receded over time, he remained unwavering in his ideological outlook.

His liberal viewpoint was exemplified in his dissent in Mueller v. Allen463 U.S. 388 (1983), in which the court upheld by a narrow 5-4 vote, the constitutionality of the Minnesota law, Minn. Subd. § 1290.09, subd. 22, giving parents of parochial students attending parochial schools tax deductions for tuition, text books, and transportation. The measure was deemed not to violate the Establishment of Religion clause of the First Amendment, a view that Justice Marshall, joined by three colleagues, challenged in dissent. He viewed the law as having an impermissible “primary effect of promoting religion,” even though the state “may have legitimate secular reasons for providing such aid.”

He also dissented, with two colleagues, from the court’s decision in Minnesota vMurphy, 465 U.S. 420 (1984), which held that the state supreme court erred in suppressing a murder confession made by a man to his probation officer. The majority reasoned that admissibility of inculpatory statements did not violate the Fifth Amendment right against self-incrimination because the probationer was not in custody and did not invoke the Fifth Amendment. This did not sit well with Justice Marshall, who regarded the reasoning for reversal as “simply incredible” because the probationer was threatened with revocation if he did not “answer truthfully all questions asked by his probation officer.”

Justice Marshall was one of two dissenters in another self-incrimination case from Minnesota, Selective Service System v. Minn. Public Internet Research Group, 468 U.S. 841 (1984), which upheld the federal law requiring draft-age men to register for the draft as a condition of receiving financial aid for college. The high court reversed the ruling of U.S. District Court Judge Donald Alsop in Minnesota deeming the aid-forfeiture provision in the Military Selective Service Act unconstitutional. But Justice Marshall felt that Judge Alsop got it right because the measure “compels self-incrimination and … violates due process by denying [registrants] equal protection of the laws.”

Fittingly, as the court turned more conservative and Justice Marshall was frequently in the minority, his last official act on the high court was a dissent in a Minnesota case, Cohen v.Cowles Media Co., 501 U.S. 663 (1991). Decided at the end of the 1990-91 Term, his last one, it reversed a Minnesota Supreme Court decision overturning on First Amendment grounds a Hennepin County District Court jury verdict of $700,000 ($200,000 compensatory damages and $500,000 punitive) in favor of a confidential news source whose identity was disclosed, despite promises of secrecy, by the two Twin Cities daily newspapers.

The court’s 5-4 majority overturned the state Supreme Court on grounds that the First Amendment did not trump state laws of “general applicability” and remanded the case. But Justice Marshall joined a group of four dissenters in a pair of minority decisions that thought the verdict transgressed the First Amendment right of freedom of press. On remand, the following year, after Justice Marshall had retired, the Minnesota Supreme Court reinstated the compensatory damages of $200,000 on grounds of promissory estoppel.Cohen v. Cowles Media, 479 N.W.2d 387 (Minn. 1992). But that time, Justice Marshall had retired, replaced by Clarence Thomas.

Justice Marshall retired, due to ill health, at the end of the 1990-1991 Term, shortly before the Court heard a Minnesota case at the intention of the First Amendment and racial bigotry, R.A.U. v. City of St. Paul, 505 U.S. 377 (1992), which involved a challenge to a charge brought against a juvenile under the St. Paul Bias-Motivated Ordinance for participating in a cross burning on the lawn of a home on an African-American family. It would have been interesting to see how Justice Marshall, a fierce defender of freedom of expression and an equally ferocious foe of racism, would have addressed those conflicting issues. His successor, Justice Thomas, cast a decisive vote as part of the five member majority that struck down the law because it was “content-based,” while the other four justices all concurred for varying reasons.

Justice Marshall’s role in Minnesota litigation ranged from important majority opinions to concurring and often dissenting in other cases. His portrayal in the recently-concluded play has captured the essence of his role as a trail-blazing attorney and jurist.

*Originally published in Minnesota Lawyer