Nels Johnson (judge)

Nels G. Johnson (April 30, 1896 – December 2, 1958) was a justice of the North Dakota Supreme Court from April 1, 1954, to December 2, 1958.^[1]

Born in Akranes, Iceland, Justice Johnson immigrated to the United States in 1900 with his parents, Gudbjartur Jonsson and Gudrun Olafsdottir, and brother, Jon.^[2] They homesteaded on a farm in McHenry County along the Mouse River near Upham, North Dakota. Johnson was the eldest of six children.^[3] Johnson graduated from high school at Bottineau, North Dakota. Id. at 8. After high school, Johnson joined the U.S. Army and served in France during World War I. He participated in engagements at St. Mihiel, Meuse-Argonne, Marbache, and Lucey during the war. Id.

After the war, Johnson went to college and law school at the University of North Dakota, where he received B.A. and L.L.B. degrees. He was admitted to practice law on July 9, 1926, and later married Ruth Hallenbeck of Inkster, North Dakota in 1931.^[3][4] Johnson began the practice of law in Towner, North Dakota. Id. He later served as State’s Attorney for McHenry County for a period of 10 years beginning in 1934.^[3] In 1944, Johnson was elected as Attorney General of North Dakota. Id. He was re-elected Attorney General in 1946 and resigned from that post on September 1, 1948.^[5] After entering the private practice of law for approximately six years, Johnson was appointed to the North Dakota Supreme Court on April 1, 1954, to fill the position left vacant by the death of Justice Christianson.^[5] He was 57 years of age when he assumed office and, in the 1954 general election, was elected to serve out Justice Christianson's term. Id. He was reelected to a ten-year term in 1958 but died at age 62 on December 2, 1958, after serving approximately four years and eight months. Id.

Of note during his legal career, Johnson argued before the United States Supreme Court in Ashbury Hospital v. Cass County, 326 U.S. 207 (1945). In that case, Attorney General Johnson successfully defended a depression-era statute that required foreign corporations to sell off farm land in the state “except such as is reasonably necessary in the conduct of their business[.]”. 326 U.S. at 209. The Court agreed that the Fourteenth Amendment did not bar states from excluding or regulating foreign corporations altogether. 326 U.S. at 211. It held that the power to regulate a foreign corporation’s agricultural land holdings was a subset of that “greater power[.]” 326 U.S. at 212. The Court affirmed. 326 U.S. 216.

With the North Dakota Supreme Court, Justice Johnson authored 64 opinions for the majority of the court and one dissent. Among those cases, Justice Johnson wrote for a unanimous court in State v. Whiteman, 67 N.W.2d 599 (N.D. 1954) overturning the conviction of Oscar Whiteman on charges of second degree murder for his involvement in the death of Cynthia Starr. Id. at 600. Whiteman and his co-defendant Donald Malnourie both confessed to murdering Starr after being held for days without counsel and subject to threats, violence, and intimidation. Id. at 605. The court overturned the conviction because the confession was coerced and because Whiteman’s waiver of counsel was not knowing and intelligent. Id. at 612. Justice Johnson wrote:

The defendant is an Indian Citizen, 25 years of age, with only a grade school education. He was confronted by the most serious crime under our law. He had no one with whom to counsel or from whom to seek advice to protect his legal rights. He had been detained in an atmosphere of hostility of which the trial court was not aware. He had been subjected to intimidations, threats and even violence, and the evidence bears out that he felt that there was nothing he could do except to plead guilty to the information charging him with murder in the first degree. He felt that he had but one alternative. It was a waiver compelled by a lack of choice, arising out of the necessities of the circumstances.

Id. at 610. This case is of significance in North Dakota law because, building on State v. Magrum, 38 N.W.2d 358 (N.D. 1949), it acknowledged that the 14th Amendment Due Process Clause required appointed counsel for indigent defendants accused of serious crimes unless the circumstances indicated a clear waiver of that right. Citing Betts v. Brady, 316 U.S. 455 (1942), Justice Johnson noted that “[t]he emphasis in the law in later years has been to make the right of counsel effective and to eliminate denial theron to any accused unless the facts and circumstances clearly disclose that counsel was competently and intelligently waived.” Id. at 612. Whiteman was later convicted after a trial, as was Malnouri.^[6] The Sheriff of Dunn County was convicted of civil rights violations related to the coerced confessions.^[7] The Starr murder case was the subject of at least 60 articles in the Bismarck Tribune between 1954 and 1982.

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