DeMeules, Rita Coyle

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Mitchell Hamline School of Law

William Mitchell Law ReviewVolume 18 | Issue 3 Article 111992A Tribute to Judge Donald P. LayRita Coyle DeMeulesFollow this and additional works at: http://open.mitchellhamline.edu/wmlrThis Article is brought to you for free and open access by the Law Reviewsand Journals at Mitchell Hamline Open Access. It has been accepted forinclusion in William Mitchell Law Review by an authorized administratorof Mitchell Hamline Open Access. For more information, please contactsean.felhofer@mitchellhamline.edu.© Mitchell Hamline School of LawRecommended CitationDeMeules, Rita Coyle (1992) "A Tribute to Judge Donald P. Lay ," William Mitchell Law Review: Vol. 18: Iss. 3, Article 11.Available at: http://open.mitchellhamline.edu/wmlr/vol18/iss3/11RITA COYLE DEMEULEStJudge Donald P. Lay's decision to take senior status providesan opportunity to revisit briefly some of the highlights of histenure as ChiefJudge for the Eighth Circuit Court of Appeals.My review of Judge Lay's opinions is aided by the invaluableyear I spent with him as one of his law clerks. Judge Lay's will-ingness to teach his law clerks about a federal judge's decision-making responsibilities revealed one of the importantprinciples that guided his judicial career. The hallmark ofJudge Lay's judicial career, including his tenure as ChiefJudge, must be his consistent requirement to uphold the con-stitutional protections which have for over two hundred yearsbeen extended to protect the individual rights of the citizens ofthis country. His term as Chief Judge will surely beremembered for the direction and guidance he provided in nu-merous opinions regarding the sanctity of individual constitu-tional rights.'My time with Chief Judge Lay demonstrated that an increas-ingly aggressive government threatened the protection of indi-vidual rights as never before. At the same time, the increasingthreat of crime and the changing landscape of individual pri-vacy concerns contributed to a gradual erosion of individualrights.' Judge Lay, in his role as Chief Judge and the guidingt Associate, Robins, Kaplan, Miller & Ciresi, Minneapolis, Minnesota; FormerLaw Clerk to Chief Judge Lay, 1989-1990; Former Law Clerk to Justices Glenn Kelleyand M.Jeanne Coyne, Minnesota Supreme Court, 1988-1989. B.A. 1981, Universityof Wisconsin-Eau Claire; J.D. 1988, William Mitchell College of Law.1. See, e.g., United States v. Kroh, 915 F.2d 326, 342 (8th Cir. 1990) (en banc)(Lay, CJ., dissenting) (dissenting from majority opinion upholding criminal convic-tion for conspiracy and fraud on grounds that defendant did not receive a fair trial).2. This point is illustrated most graphically in the areas of abortion rights andthe use of habeas corpus for individuals convicted of crimes by state courts. Forexample, the scope of the constitutional right to abortion has varied widely since thatright was recognized by the United States Supreme Court in Roe v. Wade, 410 U.S.113 (1973). The changing moral perception of abortion has led to a gradual changein the standard of review used to evaluate abortion restrictions so that greater con-trol over the availability of abortion has been returned to the states. See, e.g., Websterv. Reproductive Health Serv., 492 U.S. 490 (1989) (rejecting the strict scrutiny stan-dard of review and reviewing abortion regulations under an unclear, but most likely,undue burden standard), rev'g, 851 F.2d 1071 (8th Cir. 1988) (Lay, CJ.); see alsoHodgson v. Minnesota, 110 S. Ct. 2926 (1990) (reviewing restrictions on minor'sright to abortion under lower standard adopted in Webster), afftg, 853 F.2d 1452 (8th1DeMeules: A Tribute to Judge Donald P. LayPublished by Mitchell Hamline Open Access, 1992WILLIAM MITCHELL LAW REVIEWforce for the court, did not allow these threats to deter himfrom enforcing the protections that are extended to individualsby the United States Constitution. Judge Lay would spendconsiderable amounts of time combing through trial tran-scripts and trial court records to ensure that all possible stepswere taken to protect the constitutional rights of the litigantwhose life or liberty interests were at stake. Often, that pains-taking review convinced the Chief Judge that the litigant'srights had been protected sufficiently and that his role as a fed-eral appeals court judge-upholding the Constitution-wasfulfilled.On those occasions where Judge Lay discovered trial courterrors, or those instances where the government infringed onconstitutional rights, he did not hesitate to rebuke the offend-ing party. Recently, Judge Lay's views were vindicated by theUnited States Supreme Court inJacobson v. United States.' Jacob-son provides an excellent review ofJudge Lay's approach to thecontinuing struggle between the federal government's aggres-sive enforcement of its laws, and the protection of the constitu-tional rights guaranteed all citizens, regardless of the nature ofthe crime with which they are charged.The government's mission inJacobson was prosecuting childpornography. Keith Jacobson became the target of a federalgovernment sting operation after his name was found on amailing list maintained by a dealer of both obscene and non-obscene materials. Jacobson's only prior purchase from thisdealer had been material which at the time was consideredlegal.4 Using five separate fictitious organizations, the govern-ment for more than two years worked to get Jacobson topurchase additional, and by then illegal, pornographic mate-rial. When Jacobson finally ordered one magazine overCir. 1988); Planned Parenthood v. Minnesota, 910 F.2d 479, 486 n.13 (8th Cir. 1990)(applying the Webster standard).Similarly, the use of habeas corpus petitions to review the convictions of defend-ants tried in state courts has recently been restricted substantially. See, e.g., Teague v.Lane, 489 U.S. 288 (1989); Wabasha v. Solem, 694 F.2d 155, 159, 161 (8th Cir.1982) (Lay, C.J., dissenting) ("The law abhors forfeiture.... Conscientious state andfederal trial judges should require much, much more before accepting a waiver ofcounsel in criminal cases.").3. 112 S. Ct. 1535 (1992). The Court's majority opinion, written by JusticeWhite, was joined by Justices Blackmun, Stevens, Souter and Thomas. JusticesO'Connor, Kennedy, Scalia and ChiefJustice Rehnquist dissented.4. Id. at 1538.[Vol. 182William Mitchell Law Review, Vol. 18, Iss. 3 [1992], Art. 11http://open.mitchellhamline.edu/wmlr/vol18/iss3/11TRIBUTE TO JUDGE LAYtwenty-six months after the government's crusade began, hewas arrested. 5Jacobson raised an entrapment defense, which was rejectedby the district court. On appeal to the Eighth Circuit, the ini-tial panel agreed with Jacobson in an opinion written by SeniorJudge Heaney and reversed his conviction.6 On rehearing enbanc, the full court reversed the panel opinion and reinstatedJacobson's conviction.7 Chief Judge Lay dissented from thefull court's opinion, pointing out that the government's actionsconstituted the height of entrapment of an otherwise lawfullyacting individual:I find the government's conduct in this case to be reprehen-sible. The government invested considerable time andmoney to prosecute a man who never would have commit-ted a crime but for the government's encouragement. Thegovernment should not concentrate its efforts on incrimi-nating innocent individuals; rather it should strive to sup-press criminal behavior. 8The United States Supreme Court agreed with Chief JudgeLay, stating thatby waving the banner of individual rights and disparagingthe legitimacy and constitutionality of efforts to restrict theavailability of sexually explicit materials, the Governmentnot only excited UJacobson's] interest in sexually explicitmaterials banned by law but also exerted substantial pres-sure on petitioner to obtain and read such material as partof a fight against censorship and infringement of individualrights.... When the Government's quest for convictionsleads to the apprehension of an otherwise law-abiding citi-zen who, if left to his own devices, likely would have neverrun afoul of the law, the courts should intervene.'Undoubtedly, defending the rights of convicted criminalsdoes not win popularity contests. However, the nature of thecrime or the criminal did not sway Chief Judge Lay from the5. Id. at 1539.6. Jacobson, 893 F.2d 999, vacated, 899 F.2d 1549 (8th Cir. 1990). The panelmembers were Chief Judge Lay, Judge Fagg, and Senior Judge Heaney.7. United States v. Jacobson, 916 F.2d 467 (8th Cir. 1990) (en banc), rev'd, 112S. Ct. 1535 (1992).8. Id., at 471 (Lay, CJ., dissenting). Judge Heaney also dissented, arguing thatthe government's conduct was "outrageous," violating all accepted due process stan-dards. Id. at 471, 476 (Heaney, J., dissenting).9. United States v. Jacobson, 112 S. Ct. 1535, 1543 (1992).199213DeMeules: A Tribute to Judge Donald P. LayPublished by Mitchell Hamline Open Access, 1992WILLIAM MITCHELL LAW REVIEWoath which he took upon his appointment to the bench, to up-hold the United States Constitution. Perhaps the oath is whyJudge Lay dissented from the en banc decision in United Statesv. Kroh, voting instead to reverse the defendant's convictionsfor fraud and conspiracy. '0 Or, perhaps the oath is why JudgeLay dissented from the en banc decision in Hodgson v. Minne-sota," involving the sensitive issues of abortion, parentalrights, and minors' rights to make an informed decision re-garding abortion. Here, Judge Lay admonished the court toremember its duty to uphold the Constitution. "As long as theConstitution protects the right of a woman to have an abor-tion, we are under a judicial mandate to evaluate state regula-tions in terms of whether they impose undue burdens on theexercise of that right."'' 2For me, Judge Lay's tenure as ChiefJudge of the Eighth Cir-cuit Court of Appeals will serve as a reminder of the impor-tance of respecting your beliefs, regardless of theirunpopularity. For Judge Lay, the rights protected by the Con-stitution are paramount. His years as Chief Judge will beremembered for the fervor with which he respected the inter-ests and rights of those individuals.10. 915 F.2d 326 (8th Cir. 1990). Rejecting the assertion that jurors would notrealize that the defendant's co-conspirator was his brother where the governmentbrought out brother's plea bargain during trial, Judge Lay wrote, "If we believe inthis, we believe in tooth fairies." Id. at 338-39 (Lay, C.J. dissenting).In fact, ChiefJudge Lay was very clear in explaining his concerns that the judici-ary has an obligation to protect the rights of individuals: "This dissent is writtenvigorously with the hope that trial judges exercise great care and oversight when thegovernment attempts to use guilty pleas of co-conspirators .... The need for a fairtrial should always be paramount to the government's quest to obtain a conviction atany cost." Id. at 342.11. 853 F.2d 1452 (8th Cir. 1988), aff'd, 497 U.S. 417 (1990).12. Id. at 1471 (Lay, C.J., dissenting).(Vol. 184William Mitchell Law Review, Vol. 18, Iss. 3 [1992], Art. 11http://open.mitchellhamline.edu/wmlr/vol18/iss3/11

A Tribute to Judge Donald P. Lay

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A Tribute to Judge Donald P. Lay

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