What’s right is not always popular, what’s popular is not always right.
Decades before he would head the Minnesota Court of Appeals, Edward J. Cleary lived out the meaning of that adage when he stood before the nation’s highest court to argue a cause hidden behind an ugly veneer.
In 1990, Robert Viktora, a white teenager, was accused of burning a cross on the lawn of a black family in St. Paul. Viktora, 17, was charged with “bias disorderly conduct” under a city ordinance.
A public defender with Ramsey County, Cleary examined the case and knew what he was about to do would not be popular. He argued in court on Viktora’s behalf that the ordinance violated the free speech clause of the First Amendment. Cleary took the case to the U.S. Supreme Court, which in 1992 unanimously struck down the ordinance.
The 39-year-old son of a former Ramsey County prosecutor was not hailed as a hero.
“I tried to explain it to people, but all they could see is the cross, and I get that,” Cleary said in an interview in his appellate court chambers in St. Paul. “They’d ask ‘Why are you risking your career this way?’ but I just did what I had to do.”
The case of R.A.V. vs. City of St. Paul is still a staple of constitutional law courses, and one of the earliest defining moments in the career of Cleary, 60, who will be sworn in Monday as the seventh Chief Judge of the Court of Appeals, as it marks its 30th anniversary.
Cleary’s colleagues say a career defined by his convictions is what suits him to run a 19-judge court that hears 2,400 cases a year.
“I absolutely think he has the courage to do the right thing, and I think that’s what you really hope for in a judge,” said Associate Judge Margaret Chutich, who was appointed to the court with Cleary in 2011.
Cleary’s career includes nearly 10 years as a Ramsey County judge, and experience on the state’s canvassing board during the 2008 recount between Al Franken and then-U.S. Sen. Norm Coleman. Cleary joined a panel that helped decide how to count the many disputed ballots in that race. He also was a finalist this year for a Supreme Court seat.
He takes over at a time when the Appeals Court has the final say in 95 percent of the cases that come before it.
Cleary says he is cautious about the budgetary needs of the state’s judicial branch but thinks the current budget is adequate for the Court of Appeals.
“People with means are always going to get access to the courts, so when you cut back public aid and legal defense work, you undercut access for those without means,” Cleary said. “It’s a concern that all judges have that courts are available to everyone equally, and that’s not easy to accomplish.”
Though mostly invisible to the general public, the Court of Appeals, Cleary says, is the “pressure point of the judicial system.”
Among his recent decisions: upholding a child-abuse charge against a mother who shaved her daughter’s head and forced her to march across the front lawn in plain view of neighbors; a personal-injury case involving a railroad employee’s right to sue; and whether a juvenile accused in a rape case can be charged as an adult. That last case is under review by the state Supreme Court.
Cleary will continue to hear cases in his new role and anticipates few major changes in the court. But in a career defined early by his deft handling of a case that became a key precedent in free speech laws, Cleary said there’s still time to make history.
“There’s no worthless appeal,” he said. “Some are more important than others, some are more serious than others and some have a greater impact than others, but everyone has that right to first appeal.”