A Decade of Observing the Bench: 2002: Judge Wexler: Part 2

 

 

Judge Wexler finally denied the statement he’d made in chambers (“This is not the first black person to appear in my courtroom.  If we allow these people to bring these motions, they will clog the system”), during the judicial campaign.

 

I filed to run against Judge Wexler for his state judicial seat, 53, which is located in Hennepin County, Minnesota.

Although at first I didn’t think I’d talk publicly about his statement, after talking with the community, I did.

This was 2002, the first judicial campaign around the country, post White.  I wouldn’t have run had it not been for the White decision.

Even in the wake of White, I was nervous about what I could say, and what was prohibited.  I spent about a week reading every case I could find that had been brought against a lawyer who was campaigning for judge.  Although I might have missed a few, I really did do a nationwide survey, reading everything I could get my hands on.  This was a disillusioning time for me.  I saw a real pattern in these cases.  The accuser was routinely the incumbent judge (being challenged in the election), the prosecutor was the “ethics” police, and the loser was routinely – you got it, the lawyer running for judge.

This did not seem to be about ethics to me.  It seemed like an old worn out tactic used in many campaigns, to hit your challenger to try to discredit them.  If you can get government to hit your challenger, all the better.

This was a dark side of the justice system that I was seeing for the first time.  The message seemed clear:  danger, beware, if you run for judge you will risk your career.  I could not be proud of this history.  And I really understood then the need for the White decision.

I learned that the lawyer who had campaigned for judge against Judge Wexler in the previous election had been investigated by the ethics police because he used the word “few” when he they said he should have said “a couple,” in describing prior ethics problems for Judge Wexler.  So I got the game.

(This technique by incumbent(s) would continue, more on that in later posts.)

Even armed with all my research, I look back now and see how naïve I was.  I just didn’t realize how my life would change simply by signing that affidavit of candidacy.  It does seem to me now that there are judges who don’t want to have to campaign.  It’s one thing to run for office when there is no one else on the ballot.  I do understand that it is altogether another thing when you have a challenger who can speak.

Some focus on the money, that we should not put money into judicial campaigns.  Money in all campaigns is a continual issue.  All efforts to deal with the issue seem to fail over time.  But leaving that aside, I do wonder whether the issue is better described as not wanting to campaign.

Me, I loved the campaign.  I went door to door in Hennepin County (you cannot knock every door in Hennepin County, but you can knock a lot of them), talking to people about the justice system.  I focused on the way in which the courts administer justice, rather than any particular issue.

And people wanted to talk.  I stopped in coffee shops, went to parks, attended outdoor events.  And in every venue, I found people who wanted to talk about how we could better administer justice.

I have been stunned by the argument that the average person has no opinion about the courts, doesn’t care about judicial elections.  I just did not find that to be true.  I talked to people from all walks of life, and most were happy to be asked.

The whole ‘hot button issue’ thing got blown out of proportion.  Some people wanted to talk about those, but mostly those were lobbying groups, seeking some type of candidate commitment.

I felt the campaign expanded me as a person and as a lawyer.  I have often thought about how the bench could view campaigns in a positive light.  This is an opportunity to focus on getting feedback from the public.  Some judges do take time during the year to meet with the community.  But many are, like most of us, too busy doing the day to day work to get around to it.  Campaigns force public servants out into the community to walk among the public.  Who wants to miss this fabulous opportunity to focus on how justice is dispensed?

My pitch to my public, was that the way in which Judge Wexler administered justice should be scrutinized.  It’s one thing to seek efficiency.  It’s another to let efficiency become the engine to the train, at the expense of everything else.  I focused on how change was needed to make the system more fair.

Judge Wexler decided to deny that he had made the comment in chambers that day.

Of course, having been in the room, I knew his denial was contrived.

I can’t say I was shocked, but I was disappointed.  And I did see the potential for ‘politics’ in judicial elections.  I noticed politics in the union endorsement (now, why doesn’t anyone complain about unions being able to endorse candidates for judge?).

I saw politics in the StarTribune endorsement.  The StarTribune had reported that in 1991 a lawyer

overheard Wexler make a racial remark.  As Wexler reviewed the description of extremely violent behavior involving a couple, she said, he asked an attorney about their race.  When she said they were black and asked whether that was significant, he said:  “I don’t know anymore.  It seems that some people are more prone to certain types of behavior than other people.”[1]

With full knowledge of that story, and the statement he had made to me in chambers in 2002, the StarTribune endorsed Judge Wexler, saying he was not the “architect” of the problem.  I have never understood what that meant, but the overall meaning of the endorsement was clear:  if you are sitting judge you are given lots of leeway.

But in 2002 I had the right to say those words about Judge Wexler and to discuss what those words said about the attitude he brought to the job of judge.  This, in itself, was change.

Just after midnight, the vote tallies rolled back toward Judge Wexler, and he kept his seat.  But my field of vision had been expanded, and I began to see things in the justice system I had never noticed before.

Watch for A Decade of Observing the Bench:  2002:  Judge Zimmerman

[1] StarTribune May 25, 1993, “Resolution of Hennepin judge’s sex-harassment case is questioned,” David Peterson, Staff Writer.  This article also states that Wexler “denies parts of that claim.”