Minnesota's unanimous pardon board requirement ruled unconstitutional

Gov. Tim Walz won a major court victory this week as part of his administration's goal to reshape how pardons are granted in Minnesota.

Declaring a more than century-old law unconstitutional, a Ramsey County judge sided with a challenge of the requirement that pardon seekers win unanimous consent from the state's Board of Pardons.

"The way the system was set up, I think it's become very clear over the 100-plus years that it's been in place that Minnesota has lagged significantly behind other states in granting clemency and mercy," Walz said in an interview Wednesday. "It's always been my belief that in this whole spectrum of criminal justice, restorative justice has to be a part of it in the sense that there could be clemency and mercy."

The ruling is also the latest turning point in a multiyear search for judicial relief by a woman who served a manslaughter sentence for killing her husband after she said he stabbed and raped her. Amreya Shefa unsuccessfully sought a pardon last year and fears she would be killed by her husband's family if she is deported to her native Ethiopia.

"This is a woman who has had the legal system treat her, in my view, quite unfairly for the last decade and this is one of the very first results she experienced where the legal system produced what I call a just result for her," said Andy Crowder, an attorney for Shefa.

Her attorneys challenged the state's requirement that all three members of the Board of Pardons — the governor, attorney general and state Supreme Court chief justice — agree to grant pardon or clemency requests.

Immigration and Customs Enforcement officials detained Shefa in 2018 after she served her sentence and placed her in deportation proceedings. She still has a case pending before the Immigration Court and is now out of custody on bond.

Walz and Attorney General Keith Ellison voted last year to grant Shefa a pardon, but Chief Justice Lorie Skjerven Gildea dissented. It is one of 12 cases since Walz and Ellison took office in 2019 in which the two Democratic elected officials have voted to approve a pardon while Gildea — appointed to the state's high court by GOP Gov. Tim Pawlenty — voted against.

Walz took the unusual step of siding with a plaintiff who sued him and his fellow pardon board members in this case. Ellison, whose office is defending him and Gildea in the suit, wasn't available to comment, and his office said they're "considering whether to appeal." Because of his stance on the case, Walz obtained outside counsel from the Ciresi Conlin law firm.

The Minnesota Constitution originally gave the governor sole power to grant pardons but was amended in 1896 to give that power to a board to "deprive the governor of the power to alone grant pardons and reprieves."

Shefa and Walz argued that the phrase "the Governor in conjunction with the Board of Pardons" meant that Walz still maintained pardon powers that were separate from the rest of the board. That interpretation would make it possible for a 2-1 vote to be enough to approve a pardon.

In her ruling, Ramsey County District Judge Laura Nelson agreed that the governor "has some pardon power or duty separate or apart from the Board of Pardons."

Nelson concluded that the law governing the state's pardon board was unconstitutional because it does not explain how power should be divided between its members.

Nelson declined a separate request from Walz to grant Shefa's pardon. The governor argued that Gildea's vote against pardoning Shefa violated the state's separation of powers by giving the chief justice a "unilateral veto." In her 14-page ruling, Nelson added that it is up to the Legislature "to define and regulate the powers of the pardon board."

In a statement, Kyle Wislocky, an attorney for the governor, said Nelson's decision "is about more than just one case; the Court's decision will positively impact the entire pardon process going forward in Minnesota."

"This ruling will allow pardons to play their proper role in Minnesota's constitutional scheme and will allow for more pardons to be granted," Wislocky said.

Gildea declined to comment on Nelson's ruling.

In an interview last year on proposed changes to the pardon board, Gildea said she thought "re-examination is a good thing to do" but added "the pardon board in the sense that there are three of us working together, and we can be a check and balance on each other … is a good thing."

Before the coronavirus pandemic struck the state last year, Walz's administration made a legislative proposal to change the state's pardon process one of its top criminal justice policy priorities.

A DFL-backed bill did not gain traction as lawmakers largely focused on pandemic relief. The proposal also called for a clemency review commission modeled after South Dakota's. It would be staffed by nine people — three appointed by each of the pardon board's members — to review applications four times each year. Applications are currently reviewed by the corrections commissioner.

Walz and proponents of the changes blame the current system for Minnesota's record of granting fewer than a third of the 50 to 60 pardon applications it considers each year.

Shefa's attorneys expect Nelson's ruling to be appealed. Even if the order becomes the final say on the law, it is also unclear whether Shefa must reapply for a pardon.

Yet Crowder described Nelson's ruling this week declaring a more than 100-year-old statute unconstitutional as "a big deal."

"This is Minnesota taking a step toward the rest of the country," Crowder said.

Stephen Montemayor • 612-673-1755

Twitter: @smontemayor