By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
by Beth Hawkins and Anders Smith-Lindall
The longer John Derus talks, the more the story starts to resemble an Oliver Stone epic. Derus, the old-school North Minneapolis politician who for 11 years ruled the Hennepin County Board with an iron fist, is still smarting from the loss last September of a primary race for a state Senate seat.
He blames his 104-vote loss on the Star Tribune, which, on election day, ran his photo below a headline decrying "charity fraud," and on Supreme Court Justice Alan Page, who cast the key vote rejecting his subsequent bid for a new election. Earlier this year Derus filed a complaint with the Minnesota Board of Judicial Standards arguing that Page should have bowed out of the case because he has several close ties to the newspaper: His wife does business with the Strib, whose parent company has donated $65,000 to Page's private, nonprofit educational foundation. And Cowles VP David Cox serves on the board of Cowles's philanthropic arm and on the advisory board of the Page Education Foundation. Even though the petition was the third complaint involving Page's foundation filed since the former Vikings great was elected in 1992, its recent dismissal didn't surprise Derus, who notes that the board's secretary, DePaul Willette, is married to an editor at the Star Tribune.
Nearly a year after his last loss at the ballot box, Derus believes that the ruling was the result of what he calls a campaign on the part of the Strib to influence the state Supreme Court and seal his departure from local politics. The newspaper's top brass, he says, has hated him for decades, in large part because of his anti-choice stance. Although the Strib has continually endorsed Derus's opponents, there's little evidence suggesting that the newspaper orchestrated the episode to sink Derus's District 58 Senate bid.
Minnesota's judicial code of ethics, however, is clear in stating that judges should avoid ruling on matters in which they or their spouses have a social or financial interest. Moreover, the code states that a justice needn't actually be biased to remove him or herself from a given case, the circumstances need only provide the appearance of a conflict.
Nonetheless, it would appear that the dismissal of Derus's complaint means that troubling questions about Page's potential conflicts of interest in this and other cases will remain unanswered. A City Pages review of Page's judicial decisions, Page Education Foundation financial records, and Minnesota's judicial canon of ethics reveals that Page has ruled on numerous cases involving contributors to his nonprofit and to his 1992 electoral campaign. How many of these questions the board probed and the grounds on which they rejected the complaint will probably remain unknown because its proceedings are secret. Willette says state law bars him from commenting for this story unless Page grants him permission, and Page's only response to City Pages' questions was to fax the paper a copy of a letter from Willette informing him that Derus's complaint had been dismissed.
When the polls opened on primary day Sept. 10, the race between John Derus and Linda Higgins for the DFL nomination to represent Minneapolis's North Side in the state Senate was too close to call. Accustomed to the Strib's longstanding policy of not publishing election stories on days the polls are open, Derus didn't expect to see anything about his race in the morning metro section. He hadn't even had time to unfold his own newspaper when, at 6 a.m., his phone rang with what he says was the first of dozens of calls from supporters who opened their copies of the paper to find Derus's mug illustrating a story whose headline included the words "charity fraud." Derus lost the race, his third losing contest in as many races.
Derus didn't buy the Strib's explanation--that the photo popped up because it was never cleared out of the computer's memory cache--and on Sept. 23 asked Hennepin County courts to throw out the election results and order a new one. The case was to be farmed out to a court in another county quickly enough that a decision could be made in time for the November election to go ahead. But on Oct. 1, the state Supreme Court took the extraordinary step of reaching down into district court and plucking away the case.
The five justices who read the briefs submitted by Derus, Higgins, and the Star Tribune issued four opinions. The majority opinion, authored by Sandy Keith and Jeanne Coyne, rejected Derus's claim, concluding that Minnesota election law can't be used to sue a third party such as a privately owned newspaper. Two justices voted to allow local courts to decide the complaint on its merits, at least creating a record of relevant facts. Two more bowed out of the case. Page's vote was the tie-breaker. In a separate argument, he concluded that the rarely used law cited in Derus's brief was unconstitutional.
Derus unsuccessfully appealed the ruling, complaining that Page should have recused himself from the case due to conflicts of interest. Since 1990, Cowles had given $65,000 to the small Minneapolis nonprofit that Page founded to grant college scholarships to disadvantaged minority youth. In addition, public relations consultant Diane Sims Page, the justice's wife and a foundation board member, counts Cowles among her clientele. Furthermore, Cowles President David Cox--one of the individuals named in Derus's suit--both sits on the foundation's advisory board and is vice president of Cowles's philanthropic arm.
Minnesota's code of judicial ethics instructs judges to recuse themselves from cases in which their relationship to someone involved or their own extracurricular activities could pose a conflict of interest or create the perception of such a conflict. The code also stipulates that judges may not rule on cases involving parties in which they or any member of their households have a financial interest unless they disclose their conflict and everyone involved in a case agrees to let them stay on.
In Page's case, the potential conflict that comes up again and again is his foundation, by all appearances a well-run outfit with low overhead and admirable results. In 1993, the foundation sent out a fundraising letter signed by its board of directors--which, the letterhead noted, includes Alan Page. The appeal went out to many in the legal community and raised concerns about the propriety of Page's involvement. The outcry spurred Page to go to the Board of Judicial Standards seeking guidance in the handling of his dual roles as justice and fundraiser. Minnesota's code of judicial ethics bars judges from using their official positions to solicit funds for any cause, be it their own campaign or a private charity such as the Page Foundation. So the board ordered Page to refrain from signing fundraising letters or from noting his position on the court in fundraising materials.
The following year, the foundation mailed a similar letter, signed this time by Diane Sims Page. Recipients expressed similar concerns and Page went back to the state, which this time responded that he had complied with their earlier suggestions, but noted that the issue was likely to come up again. "There are many judges who serve in charitable nonprofit organizations, and the code provides for that," Willette said at the time. "The limitation is on their activity soliciting funds. But the code also says judges should be active in their communities, so there's always a tension." As a result of the questions raised by Page's involvement, the board called for further study of judges' roles in civic organizations.
One matter Willette said he hoped to explore was whether "the rules apply differently to somebody very well known like Justice Page." Indeed, Page's prestige and name recognition are most likely a large part of what makes the foundation successful, as well as the reason it bears his name. Last Nov. 5, the same day Derus was defeated at the polls, Sims Page signed a fundraising letter offering Vikes fans autographed, glossy Alan Page MVP commemorative cards--just in time for the holidays.
In addition to his stature as an NFL Hall of Famer and the leader of the Purple People Eaters, Page is politically plugged-in. A vocal supporter of such liberal candidates as Walter Mondale and Warren Spannaus and the first African American elected to the state's highest court, he's been photographed jogging with Bill Clinton. Both his foundation and his campaign finance records are peppered with the names of political, legal, and corporate movers and shakers.
Supreme Court justices are appointed by the governor to their first six-year term and then run for re-election in what are supposed to be apolitical races. (In Minnesota, judges aren't even allowed to disclose party affiliations.) Up until recently, most ran unopposed and thus didn't often accrue large campaign war chests. But in 1992, Page raised nearly $64,000 from such DFL bigwigs as department-store heir Mark Dayton, a former Hennepin County commissioner and current gubernatorial candidate, then-West Publishing exec Vance Opperman, Aveda founder Horst Rechelbacher, and former House Majority Leader and U.S. Senate candidate Ann Wynia, as well as dozens of attorneys at large and well-connected law firms.
Minneapolis attorney Sam Kaplan is a partner in Kaplan, Strangis & Kaplan and one of the DFL's most influential behind-the-scenes kingmakers, playing a crucial fundraising role in many campaigns, most notably Paul Wellstone's two successful runs for U.S. Senate. Sam Kaplan himself apparently never contributed to Page's campaign, but his partner, Sheldon Kaplan (no relation), has, and Sheldon Kaplan's nephew, former DFL City Council member Mark Kaplan, was the treasurer of Page's campaign.
Two of Page's campaign donors, Dayton and DFL state Sen. Larry Pogemiller, also contributed to Linda Higgins, the DFL candidate who beat Derus in last fall's Senate race. Needless to say, Derus's campaign-finance disclosures don't list any of the same people who helped put Page on the bench. In recent years, the conservative Democrat's coffers have been filled by business interests, including broadcasting baron and Republican bankroller Stanley Hubbard.
A check of court records indicates that during the time Page has served on the bench, cases involving at least six foundation donors have come before the court. In addition to Cowles, they are Honeywell, St. Paul Companies, First Bank, Aetna, and Robins, Kaplan, Miller & Ciresi. Page recused himself from at least four of these cases, but ruled in at least 21 others. A review of those decisions reveals no pattern of favoritism toward foundation donors, and no consistent relationship between the timing of the companies' donations and subsequent decisions. One point that remains unclear is whether Page has ruled on cases involving Sims Page's clients, besides Cowles.
For years, state Supreme Court justices have been first appointed by the governor and later run for re-election. Because the Legislature set the system up to protect incumbents and discourage challengers, those re-election races have rarely been truly competitive. In fact, before Page defeated Minneapolis attorney Kevin Johnson for Justice Yetka's seat in 1992, there hadn't been a head-to-head election for an open seat in more than 25 years.
That same year, three incumbent Supreme Court justices also faced serious challenges, for the first time requiring justices to raise unprecedented campaign war chests. The justices' campaign committees solicited much of their funding from Minnesota attorneys, who for the first time questioned the provision of the ethical canon that says the way for elected judges to remain impartial is for others to do their fundraising for them. Similarly, the ethical canon encourages justices to be involved in their communities, specifically mentioning philanthropy as an appropriate avenue, yet bars them from capitalizing on their prestige and from allowing their outside activities to jeopardize their independence.
"The idea is that anyone who comes into our courts should be treated the same no matter who they are or where they came from," explains Hamline law professor Marie Failinger. "Even if there is no technical conflict, judges have to be sensitive to the public's perceptions."
Page had three separate potential conflicts in Derus's case. Whether any of them troubled the Board of Judicial Standards, or was even discussed at its April 18 meeting with Page, is likely to remain a mystery. In a letter to Derus, Willette explained the board's rationale for overlooking each of Page's three ties to the Strib in only general terms: Cowles's contributions to the Page Educational Foundation didn't constitute a large enough percentage of the charity's budget to make the justice beholden; David Cox attended just one of the foundation's five most recent advisory board meetings; and Page's wife's professional contacts were her own business, Willette wrote.
"You raised the matter of Diana Sims Page's employment as an independent market research consultant for the Star Tribune from 1992 to 1995 when the paper was redesigning its format," the letter concluded. "The board finds that Ms. Page's employment is a matter of her choice and self-interest, completely unrelated to her husband's judicial responsibilities or your case.
"On April 17, 1997, you informed the board members individually that the executive secretary of the Board is married to a business editor at the Star Tribune. The employment of the executive secretary's spouse is irrelevant to your complaint." Page declined City Pages' request to make the secret proceedings public, leaving unanswered the question of what kind of appearance of conflict would compel a justice to remove him or herself from consideration of a case.
It may be that the Page Education Foundation's laudable goals and Alan Page's position in the community are the very reasons John Derus--himself more an outsider every day--can't seem to get any action. His only remaining avenue for relief is the Legislature, which heard testimony in the matter last January and is unlikely to unseat Higgins because she played no role in any alleged election fraud. Whether Derus ever succeeds in winning a new shot at the North Side Senate seat, it appears that questions about Page's potential conflicts of interest will go unanswered. But the issue of judges' electoral and personal financial interests will only crop up more frequently in coming years.