State Con Law Case of the Week: Both Keys at the Same Time

Anthony Sanders · January 14, 2022

One of the ways in which state constitutions differ the most, both with each other and with the U.S. Constitution, is the distribution of executive power. As you probably know, in the federal government executive power is highly concentrated in the President. There are arguments about how absolute that constitutional power is (such as whether the President can fire members of certain boards) but that’s usually on pretty peripheral stuff. The President is the commander-in-chief, can unambiguously fire most high-ranking officials if they don’t follow his orders, and can pardon people without qualification.

That drink is too strong in most states. As you can learn all about in Judge Jeffrey Sutton’s great new book Who Decides? States as Laboratories of Constitutional Experimentation, unitary executive power basically doesn’t exist at the state level. For example, 43 states independently elect their attorney general, and in only two states (Alaska and Wyoming) can the governor fire the AG at will. And there’s all kinds of other state executive officials that have gubernatorial independence, such as directly elected state secretaries of state, treasurers, auditors, etc. Perhaps because governors don’t lead the armed forces of an entire country, or perhaps because the Presidency has worried constitution makers ever since Alexander Hamilton got his wish for an “energetic executive,” state constitutions aren’t afraid to cut executive power into bits.

One example of the diversity of what states do with their executives is the pardon power. Some states are like the federal government and the governor can pardon someone without anyone else’s sign-off. Many, however, temper this with input from the legislature and/or an independent board. Sometimes this input is advisory, but often it places real constraints on the governor. And in a few states all the governor does is appoint a board which then itself decides who gets a pardon. (You can see each state’s variation on the handy chart available here from the Restoration of Rights Project.)

This week the Minnesota Supreme Court explained where that state fits on that continuum. In doing so it provided a couple interesting metaphors and ironed out a few questions about the state constitution’s separation of powers.

Bridesmaids and ICBMs

At issue in Shefa v. Ellison was the potential pardon of a woman who had been found guilty of manslaughter. She applied to the state Board of Pardons, which consists of the Governor, Attorney General, and the Chief Justice of the Minnesota Supreme Court. The Governor and Attorney General voted to pardon the woman. However, the Chief Justice did not. Under the relevant statute the three of them must be unanimous. Therefore, she was told her pardon failed. She then sued, including all three board members in the lawsuit, asking that the unanimity requirement of the statute be declared unconstitutional. After winning at the district court the case went straight to the state supreme court. (Where, as you might expect, the Chief Justice recused herself.)

The case largely turned on the interpretation of Article V, Section 7 of the Minnesota Constitution, with language that the court emphasized is not a model of clarity. It states:

Board of pardons. The governor, the attorney general and the chief justice of the supreme court constitute a board of pardons. Its powers and duties shall be defined and regulated by law. The governor in conjunction with the board of pardons has power to grant reprieves and pardons after conviction for an offense against the state except in cases of impeachment.

We’ll go through this language in a moment. First let’s also look at Minn. Stat. § 638.02, where the legislature has “defined and regulated” the Board’s “powers and duties” as Article V, Section 7 allows. The first section of that statute—the provision whose constitutionality was at issue—states:

The Board of Pardons may grant an absolute or a conditional pardon, but every conditional pardon shall state the terms and conditions on which it was granted. Every pardon or commutation of sentence shall be in writing and shall have no force or effect unless granted by a unanimous vote of the board duly convened.

You can see that the “unanimous” requirement is not in the constitutional language itself. The Constitution sets up the Board and who is on it and requires that the governor “in conjunction with the board has power” to grant pardons. So the question is whether the statutory “unanimous” requirement is permissible under the legislature’s power to “define[] and regulate[].”

Note that the key sentence says that the governor and board “has power” not “have power.” Does this mean the “power” is really the governor’s (as it refers to a singular noun) and the board is simply advisory? Or perhaps a pardon can come from either the governor or the board? In either case the unanimity requirement would clearly violate the Constitution. Or, does the “in conjunction with” mean the board is the key decisionmaker but the governor is just named because, kind of like its chair, he has certain ministerial duties, like being the one to actually sign a pardon? In that case the unanimity requirement would likely be permissible.

Unsurprisingly, the court found the language ambiguous. But it did make this interesting analogy in making sense of the “has” versus “have” grammar:

the language can be reasonably interpreted as the governor and the Board of Pardons both have an insufficient but necessary power to grant a pardon. Under this second interpretation, the pardon power granted by the pardon provision is divided in a manner that is readily understood when one considers a military protocol made part of movie images—the simultaneous turning of two different keys to launch an intercontinental ballistic missile; both keys are necessary but neither key by itself can launch the missile.

(Emphasis added.) Cringing fans of Doctor Strangelove or War Games (or maybe Superman III) may object to this (I think helpful) analogy, but—depending on their color preferences—they might instead enjoy another example the court gave, drawn from the Chicago Manual of Style:

It lists the following sentence as grammatically correct: “The bride as well as her bridesmaids was dressed in mauve.” See Chicago Manual of Style, supra, at § 5.142. Even though the subject of this sentence is the singular noun “bride,” this sentence communicates that the bride and her bridesmaids wore mauve.

Therefore, the court concluded, it could be that both the governor and the “Board” collectively are needed for a pardon. In that case the governor’s vote is necessary for a pardon, but the legislature has discretion otherwise: “the Legislature could adopt a voting scheme that allowed a pardon to be granted under any of the following circumstances: the governor and attorney general vote to grant the pardon; the governor and chief justice vote to grant the pardon; or the governor, attorney general and chief justice all vote to grant a pardon.”

An Old-Time Amendment

But the court didn’t think this was the only reasonable interpretation of Article V, Section 7, as it thought the interpretation where the governor can issue a pardon independent of the Board was reasonable as well. To find which one is the best reading it then turned to history.

That history was pretty unambiguous. The original pardon language, adopted with the Minnesota Constitution in 1857, gave the governor wide and solitary pardoning powers like the President. But the legislature, and then the voters, amended that provision in the Constitution in 1895 and 1896 to essentially be that of today. The statement of purpose given to the voters in the 1896 election stated “The effect of the adoption of the aforesaid proposed amendment will be to deprive the governor of the power to alone grant pardons and reprieves.” A year after this passed the legislature adopted the current unanimity requirement. Thus, looking at this history in context, the court was satisfied that Article V, Section 7 does not allow the governor alone to grant pardons.

Thus, not only does the governor need to sign-off on a pardon in Minnesota, but the Attorney General and Chief Justice must as well. This certainly looks like a system that will result in less pardons than one where just a governor or a majority of a board is needed, and therefore might not be one other states should emulate. But it does appear to be in line with the “both keys” discretion the voters approved in 1896 and what the legislature thereafter made unanimous.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.

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