Battle lines of judicial activism, from our own Minnesota Supreme Court

Just in time for the political season, the Minnesota Supreme Court has made its own future another issue voters might want to consider.

Could this state's high court become like the famously fractious U.S. Supreme Court? Could it split into ideological blocs, largely defined by the governor who appointed the justices, and with each bloc championing a starkly different philosophy about the proper role of courts in our democracy?

The questions seem pertinent in the wake of a difficult case that emerged from the collision of two social scourges — drunken driving and domestic abuse — and ended in a collision of two core judicial approaches — commonly called "restraint" and "activism."

The case posed this dilemma: Should a victimized wife be excused for driving drunk to flee a rampaging abuser?

The court said "no" earlier this month, in a contentious 4-3 ruling.

On Memorial Day weekend 2011, Jennifer Axelberg and her husband, Jason, argued after a night of drinking at a resort. He turned violent, hitting her twice and breaking her car's windshield after she locked herself in it. She then drove away, about a mile back to the resort. He pursued, and both were soon arrested — she for drunken driving after testing at double the legal blood-alcohol limit.

Axelberg's driver's license was revoked. She appealed, saying she should be able to plead "necessity" — a traditional common-law defense.

But writing for the majority, Chief Justice Lorie Skjerven Gildea held that the necessity defense is not available to Axelberg under Minnesota law. The Legislature, Gildea said, has explicity limited the issues courts may consider in an appeal of license revocation — and necessity isn't one of them.

If that limitation seems unjust, the chief justice added, "[t]his public policy concern should be directed to the Legislature." The court "must read this state's laws as they are, not as some argue they should be."

Gildea was joined by Justices G. Barry Anderson, David Stras and Christopher Dietzen. All four were appointed to the high court by Republican Gov. Tim Pawlenty.

Three justices dissented emphatically. Each wrote separately and joined the dissents of the others. In what constitutes strong language for this often courteous court, they called the majority's ruling "stingy" and "slavish" and satirized it as meaning that "losing the privilege to drive is a small price to pay for saving your life."

Judicial review should not be "mechanical," they argued, but "a place where justice can be done."

Two of the dissenters, Wilhelmina Wright and David Lillehaug, were recently appointed by DFL Gov. Mark Dayton and will face voters in a re-election bid for the first time this fall. The other dissenting justice, Alan Page, directly elected to the court in 1992, is its senior member and liberal lion.

Let's stipulate, as the lawyers say, that Axelberg is a hard case. Society's concern for victims of domestic abuse is, and should be, almost unbounded. But heartbreaking, too, are the ravages of drunken driving. It's been only through steadily tougher laws and stiffening social intolerance that significant (but still inadequate) progress has been made reducing it.

Historically, lenient local judges have been one of the obstacles in combating drunken driving. That may have been on legislators' minds when they limited what courts could consider in revocation appeals.

In his dissent, Justice Lillehaug noted that the statute in question gives the Department of Public Safety (which also hears appeals of revocations) latitude to consider "any … material information" in deciding whether the revocation is merited. Presumably, that could include claims about necessity.

"It is troubling," Lillehaug wrote, "that, under the majority's reading, the statute gives an administrative reviewer authority to do justice, while the judiciary cannot."

But limiting judges' discretion in drunken-driving cases appears to be just what lawmakers intended. In a single section of a single statute, they gave the power of open-ended review to the agency that issues driver's licenses but "limited … the scope" of judges' review. Was that an accident?

At bottom, the case raises this question: What should judges do when a law seems to them misguided? Improve it by decree, or, like Gildea, direct the "policy concern" back to the Legislature?

The basic notion of judicial restraint is that our laws should be made by the legislative and executive branches, which answer to voters more often and in more competitive contests than judges do. Judges' limited but vital role, in this view, is to apply the law, as written, to specific disputed cases.

As it happens, Minnesota judges are nearly unanimous in worrying that our judicial elections could become altogether too competitive and politicized, as they have in some other states. This, they fear, would undermine the unique impartial role of the courts. Efforts are being made to amend the state Constitution to better insulate judges from ideological pressures.

It's a valid concern. But if judges are not going to limit themselves to reading the laws "as they are" but are going to improvise to "do justice" — well, in that case shouldn't those who decide what the laws "should be" answer directly to voters?

D.J. Tice is at Doug.Tice@startribune.com.