The Dilemma of an Unwise Law
Judge John B. Sanborn, Jr. was in the uncomfortable position in which judges often find themselves, between loyalty to the black letter law and their own best judgment. The state of Minnesota was in the thick of the law enforcement effort known as Prohibition. The 18th Amendment, prohibiting the manufacture, sale, or transportation of intoxicating liquors within the United States or its territories, had been passed by Congress on December 18, 1918, and was ratified by the states on January 19, 1919.
The Eighteenth Amendment gave concurrent enforcement powers to both state and federal governments. These came to life through the National Prohibition Act in 1919, better known as the Volstead Act for the Granite Falls, Minnesota Congressman Andrew Volstead, who sponsored it. Sensational stories of prohibition agents and their local partners destroying stills, smashing liquor bottles, axing beer barrels, and pursuing contraband with Coast Guard speed boats headlined the news.
There was much enthusiasm for prohibition laws in Minnesota, with Irish immigrants leading the pro-temperance charge and German immigrants strongly opposing it. The Women’s Christian Temperance Union, which had led the movement nationally largely because of the role liquor played in family abuse and neglect, was active in Minnesota. Minnesota’s World War I xenophobia against German immigrants may also have played a role in Minnesotans’ embrace of temperance, which produced a county option for banning liquor in 1915.
In a culture in which Canadian immigration smuggling, narcotics, and commercial peddling “rackets” were largely tolerated in Minnesota, the struggle to enforce prohibition laws was difficult. When Prohibition passed, St. Paul became a “sanctuary for criminals,” aided by politicians and police following the lead of Chief John O’Connor, who made a deal with gangsters. The police would not arrest those involved in drug and alcohol smuggling, racketeering, and gambling so long as the sheltered gangsters checked in with police when they came to town to hide out, paid a cut of the proceeds to local law enforcement, and did not commit any of these crimes in St. Paul. As a result, St. Paul became a fulcrum of organized crime in the U.S., and a “host” to nationally notorious gangsters such as bank robber John Dillinger, mob leader Al Capone, and the outlaws Bonnie and Clyde.
As a state district court judge serving from 1922-1925, Judge Sanborn found that most of his criminal law docket consisted of violations of prohibition laws. Indeed, prohibition violations had so overwhelmed the federal court by the time Judge Sanborn was appointed federal judge in 1925 that they had exhausted the previous occupant of the federal bench, John McGee, who committed suicide. When he became a judge, despite his personal dislike of the prohibition laws which he deemed foolish, Judge Sanborn believed his responsibility was to zealously enforce the law on the books. He communicated that stance, without ambiguity, to defendants and the community at large and made it his personal example not to drink spirits while those laws existed.
Judge Sanborn’s commitment to the law on the books was evident in his sentencing of a 51-year-old housewife and mother of three, who had been convicted, after her husband, of “moonshining” (making and selling illegal liquor). Although he considered imposing a fine and probation for the woman, whose husband was already serving a sentence in the workhouse, upon reflection, he opined that “[t]he general public and especially those inclined to violate this law should be made to realize that it was made to be enforced and should be enforced as much as any other law. . . . The punishment must fit the crime. . . . “ At that, he noted that the woman should have been alerted to the seriousness of her offense by her husband’s conviction, and promptly sentenced her to a year in the workhouse.
Sanborn continued to strictly enforce prohibition laws when he went to the federal bench, as well as “manifesting an intense interest in effective law enforcement,” and “hearten[ing] and endear[ing] himself” to federal law enforcement officers. Indeed, federal district Judge Sanborn ruled with the government on every single criminal case for which he wrote an opinion.
In one case, United States v. Wiggins, 22 F.2d 1001 (D. Minn. 1927), Sanborn upheld a federal arrest for liquor violations because the agent saw a man in a “faded blue Buick” driving occasionally to a Rosemont farm running a large liquor still. Sanborn held “It would seem reasonable to assume that no one would come upon those premises, except some one who had to do with the still or the operations of the distillery. . . .[I]t might be said that the appearance of the defendants themselves was sufficient to indicate that they were not there for any purpose connected with agriculture.” Sanborn also was impatient with creative defense motions designed to limit the availability of evidence to convict their clients.
As noted, while Judge Sanborn strictly enforced the liquor laws, he did not think them advisable. He advocated more positive ways to deter and rehabilitate defendants caught up in the underground trade. In 1929, he proposed that the state should sentence prohibition criminals to work in conservation and reforestation of Minnesota’s many state-owned acres of land, a proposal that inspired the successful creation of Sandstone, a federal prison farm.
Sanborn was also noted for the compassion that he exhibited toward defendants’ families even after he had sentenced them strictly, styling himself “a sort of Father-confessor and even food provider” to families of men he had sentenced. Occasionally, as in the case of one man with seven children, he would suspend the sentence of defendants whose families would be devastated by their incarceration. He also criticized the criminal system for not giving prospective criminals notice of the substance and consequences of the laws before, rather than trying to solve the social problem upon sentencing.
At the same time, Judge Sanborn did not tolerate lawlessness by government officials either. He is probably best known for Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), where he sat on a three-judge court reviewing a cluster of cases involving the intransigence of Little Rock officials in desegregating their public schools. He was so invested in the cases that he beseeched the chief judge to allow him to continue on the panel after he had reached the age to go to senior status. Judge Sanborn’s decision upholding the district court orders to desegregate Little Rock schools held that there was no merit in any of Governor Faubus’ arguments that he could ignore the orders of the federal district court “in violation of the constitutional rights of the eligible Negro students” by re-directing the National Guard to block the desegregation plan.
A Versatile Public Servant
Judge John Sanborn is another legacy MHSL graduate who served in all three branches of government. He was the first person from St. Paul College of Law to be appointed to the state district bench, the federal district bench, and the Eighth Circuit Court of Appeals. He graduated magna cum laude from St. Paul College of Law in 1907, in a class that included William Francis, the first African American minister to a foreign government, Minnesota Senator Thomas Schall, and John A. Burns who became SPCL Dean. Sanborn practiced law in St Paul, first with James E. Markham and then with Pierce Butler, the first Minnesotan to be appointed to the United States Supreme Court, and William D. Mitchell, son of Justice William Mitchell for whom WMCL was named.
Sanborn then became a trust officer for Capital Trust and Savings Bank, and two years later he succeeded Edward C. Stringer as a director at Capital. During the same period, Sanborn was elected to the Minnesota House of Representatives in November 1912, serving St. Paul District 37. He was responsible for new laws to raise the age of majority for women from 18 to 21, and a worker’s compensation bill that required employers to compensate for accidents arising from employment, modified remedies, and reformed the procedures for establishing compensation. He was elected to represent District 42 in 1914, and besides chairing the Worker’s Compensation Committee, he served on committees on banking, fish and gaming, the judiciary, insurance, and universities. In 1916, in an election won both nationally and locally by Democrats, he lost his seat to John I. Levine, a fellow SPCL graduate, by 164 votes.
While he was Insurance Commissioner, Sanborn felt called to serve in World War I, enlisting as a private in the U.S. Infantry and serving in Arkansas for several months until December 1918. He then returned to Minnesota and was re-appointed to his position as Insurance Commissioner and later as a member of the Minnesota Tax Commission.
Judge Sanborn was thirty-eight when he was appointed to the Second Judicial District Bench in 1922, serving there until he was appointed to the federal district bench by President Calvin Coolidge in 1925. Seven years later, in 1932, he was appointed to the Eighth Circuit Court of Appeals by President Herbert Hoover, where he served until taking senior status in 1959. He finally retired in 1963. As a federal judge, he sat on more than 2,400 cases and issued 900 majority or per curiam opinions, plus the rare dissent.
Judge Sanborn also took on numerous administrative roles as a federal judge. He served for 20 years on the Committee of the Judicial Conference of the United States on Bankruptcy Administration and on the Advisory Committee on Bankruptcy Rules to the Committee on Rules of Practice and Procedure of the Judicial Conference. He chaired the Committee of the Judicial Conference of the United States to make post-war building plans for the United States courts in 1944. He also served for four years on the important committee revising the entire Judicial Code which had been enacted in 1948. Among his most important contributions was his service on the 1948 committee to create uniformity and consistency within the Federal Rules of Civil Procedure first promulgated in 1937.
As a judge, Sanborn was known for his commitment to a fair trial, tolerating neither prosecutorial misconduct nor defense attorney disruption through distorted jury instructions or late objections to evidence. He was particularly concerned about the dangers of pretrial publicity and attempts by appellate judges to overturn jury verdicts or district court findings, noting that defendants were entitled to “a fair trial—not a perfect trial.” Nevertheless, he was known as a judge who consistently supported the prosecution in the large majority of cases he tried or heard on appeal.
Similarly, Judge Sanborn grew frustrated with habeas corpus petitions that claimed “ineffective assistance of counsel,” understanding habeas not to be a final appeal from state or federal court convictions, but to rectify only those grievous errors that went beyond the pale. On the other hand, he did approve of habeas petitions in cases of egregious violations of defense rights, such as a case when a man was induced to make a guilty plea with a lengthy prison sentence without being informed by either prosecutor or defense of his constitutional rights before waiver.
Judge Sanborn’s noteworthy First Amendment appellate opinion was in Sellers v. Johnson, 163 F.2d 877 (8th Cir. 1947). In Sellers, Jehovah’s Witnesses tried to hold meetings in a public park and were opposed by local citizens employing both local political connections and physical force to stop them. The town sheriff dispersed the meeting, but when the Witnesses tried to meet again, he rounded up 1,000 deputies to turn them away from their meeting place. The Witnesses went to federal court to get a preliminary injunction against the sheriff. They were turned away by the district judge despite his recognition that they had a constitutional right to peaceably assemble in the park because the judge thought the sheriff acted reasonably in preventing bloodshed between the Witnesses and their opponents.
In Sellers, Judge Sanborn and his Eighth Circuit panel held that the state may not prevent citizens from exercising their rights to assembly, speech, or religion because the group was offensive to the community. Sanborn wrote that the disorder in the park was caused as much by the onlookers as by the Witnesses and suggested that the sheriff should have arrested the attackers rather than the lawfully acting Witnesses. He was also among the judges called to adjudicate strike disputes in Minneapolis during the governorship of Floyd B. Olson, also a MHSL legacy school graduate. See The 1934-35 Strikes and the Legality of Martial Law (link).
Among Judge Sanborn’s cases, patent cases particularly fascinated him. He immersed himself in the technical details of inventions and even asked counsel to demonstrate them in court. His opinions protected both simple and complex inventions, though he refused to recognize a patent in new and useful things unless the invention revealed “inventive genius and not merely the expected skill of the calling.”
Sanborn is also well-known as the mentor of Harry Blackmun, who served as his law clerk and later followed him to the Eighth Circuit and then went on to the Supreme Court.
Personal Life
John Benjamin Sanborn, Jr. was born in St. Paul, Minnesota, on November 9, 1883, one of four children of General John B. Sanborn and his wife Rachel Sanborn, nee Rice. Sanborn was a member of a Minnesota family with a legacy of service as old as the state. His father John Sr., a lawyer, commanded the Minnesota Fourth Regiment that successfully fought the Battle at Vicksburg during the Civil War. After the war, Sanborn’s father served on the Indian
Peace Commission until Sanborn Sr. resumed his law practice with his young cousin, Walter Henry Sanborn, who was studying law in New Hampshire.
After a well-regarded partnership, cousin Walter was appointed to the Eighth Circuit in 1892, where he served for 36 years. The younger John’s maternal grandfather, Edmund Rice, also a lawyer and soldier, volunteered as a lieutenant in a Michigan regiment fighting in the Mexican War before settling into practice in St. Paul in 1849. Rice served two terms as St. Paul’s mayor and was elected to Congress from the Fourth District in 1887, serving until 1889.
Judge John Sanborn, Jr. was also a faithful servant to St. Paul College of Law. He served as a trustee from 1935-1956, as vice-president of the board from 1945-49, and president from 1949-1956 when SPCL merged with two other institutions to become William Mitchell, when he reverted to vice-president. The WMCL library at its 2100 Summit Avenue location was named after Sanborn, and his legacy was celebrated with an honorary doctorate in 1959.
John Sanborn, Jr. met his future wife, Helen Clark from Iowa at the University of Minnesota. They both graduated in 1905 and were married in 1907. Their only child was his brother’s daughter, whom Sanborn and his wife adopted. Helen predeceased John in 1957.
Sanborn was well-known for his devotion to nature. As a young man, he regularly canoed the Boundary Waters, and he had a legendary reputation as a duck hunter. He loved to work at his cabin on the St. Croix River, where he spent much of his retirement time. He was well-educated about the flora on his property, taking his friends with him to the “windswept cliff” on his property, treading with care so as not to trample his favorite blue Pasque flower that bloomed there.
Admired among his judicial colleagues for his authentic modesty, one of them wrote on his death in 1964 that “He was close in spirit, steadfast, constant, true as steel, beloved and admired, respected and depended upon.” Judge Sanborn was eulogized by fellow Judge Gunnar Nordbye as a judge who was “gracious to witnesses and considerate and helpful to the members of the Bar. . . .He was a gentle, courteous man and was possessed of an unusual quantity of common sense, analytical ability, and courage. He had an untiring capacity for work and a prodigious memory for applicable decisions and legal precedents. He was firm in his convictions of what was right and wrong and did not deviate from them although he always was tolerant of the views of others. He was patient and painstaking in all his judicial work and he had an unusual ability to state in simple, clear, forceful language the opinions he wrote for the Court. With these attributes, coupled with his complete integrity and honesty, one readily understands why John B. Sanborn was considered one of the great judges of the Nation.”
References
*The quotations in this biography are taken from the references below.
Thomas W. Boyd, The Life and Career of Hon John B. Sanborn, Jr., 23 Wm. Mitchell L. Rev. 203 (1997)
Douglas R. Heidenreich, With Satisfaction and Honor: William Mitchell College of Law, 1900-2000 (1999)
James E. Klein, We are What We Drink: The Temperance Battle in Minnesota, 76 Annals of Iowa 126 (2017)
Tim Nelson, 100 Years ago, a Minnesota congressman’s law passed, and Prohibition really began, MPR News (Oct. 28, 2019)
Sharon Park, Gangster Era in St. Paul, 1900-1936, MNopedia, Minnesota Historical Society (last updated Aug. 4, 2020)
In Memoriam, John B. Sanborn, Jr. United States Court of Appeals, Eighth Circuit (Sept. 11, 1964)
100 Who made a Difference (William Mitchell College of Law, 2001)
Prohibition Agents Lacked Training, Numbers to Battle Bootleggers, The Mob Museum: Prohibition, an Interactive History, (last visited Oct. 5, 2021)
United States v. Wiggins, 22 F.2d 1001 (D. Minn. 1927)
Faubus v. United States, 254 F.2d 797 (8th Cir. 1958)
Sellers v. Johnson, 163 F.2d 877 (8th Cir. 1947)