The post today follows on some things that Spot was going to write, but CP is a morning sponge, and Spot is neither morning nor sponge.
The papers this morning are full of Chief Justice Russell Anderson's public comments about the question, and CP discusses them very well. Here's a quote from the Chief Justice, a recent Pawlenty appointee by the way, from CP's post; the link is there:
"We don't give advisory opinions," he said. "We decide these cases in the context of real cases with real people and real controversies. We do not prejudge them."
Jeebus that sounds so noble. And of course, the Court does not render advisory opinions. But if Justice Russell is telling us that a Supreme Court Justice has never discussed a legal issue, not before the Court at the time, with a legislator or constituent, Spotty suggests that you take the statement with a grain of salt, a big grain of salt.
Now, boys and girls, Spot is going to tell you about Louis Nizer's "Rule of Probability." Nizer was a famous 20th century trial lawyer, more famous that Johnny Cochrane, even. Nizer's rule helped him sort out conflicting evidence to figure out what really happened in a given situation. The rule is simple: "It probably happened in the most ordinary way." One of Spot's lawyer friends has a corollary to the rule: "Even if it didn't, you'll have trouble convincing a jury otherwise."
You may say Spotty, that is just a statement of the obvious, but often it's not. Let's take a look at the present situation. Is it likely that Dean Johnson would run into a Supreme Court Justice from time to time? Yep. Is it likely that that the Majority Leader might talk shop about an issue that is occupying the Legislature and the Majority Leader's mind, but not the Court? Again, yep. Is it likely that a Justice would thereupon draw himself up to his full height, stare at the Majority Leader, and say, in a voice soaked with contempt, "We don't issue advisory opinions"? Of course not.
Dean Johnson's mistake is – in all probability – taking some remarks made over that non-judicial hot dog and repeating them.
It is also interesting to note that Johnson's comments would probably be admitted in court - as proof that things were said - res gestae - but the Chief Justice's statements that comments were never made would be inadmissable hearsay, since he doesn't claim to be a party to the conversations and therefore has no first-hand knowledge.
That's what I've always thought. Way too much has been made over this.