“We have too many high sounding words, and too few actions that correspond to them.”
Our Minnesota Board of Judicial Standards’ function in the District of Columbia is called the District of Columbia Commission on Judicial Disabilities and Tenure. The Commission investigates complaints filed by people who are displeased with the performance of DC judges. Like Minnesota, the review process is confidential, and those who file complaints often don’t know what happened, or why the matter was dismissed.
Like in Minnesota, the DC Commission has “standard” letters it sends to members of the public when their complaint is dismissed. Like in Minnesota, these often say that the issue should have been appealed in the case itself (meaning rather than making a complaint that the judge violated his or her ethics). I don’t know much about the DC Commission, but based on what I’ve seen in Minnesota, it’s far too easy to purposely read the ethics complaint to be about an issue in the case, and just chuck it out, issuing the standard “you should have appealed” letter.
I am a sophisticated user of the Judicial Standards Board. I have filed a number of complaints, I am a lawyer, I am studied in the law of judicial ethics, and I know what I am doing. When I started to notice form letters being sent that the Board thought it was an issue that should have been raised in the case, I knew something was wrong.
First, the same issue can be a legal one for the case and an ethical one. Let’s take an easy example. If a judge in a criminal case has an ex parte communication with a prosecutor (like happened in State v. Schleinz and the court found it improper), it can be raised in the case, because the Minnesotan could not get a fair judicial decision without raising the issue. But it is also an ethics issue. Both can be pursued by the member of the public. The issue is properly pursued in both silos. And, it’s the Minnesotan’s choice. No “form” letter stating it should have been raised in the case is sufficient to protect that judge from an ethics investigation. And attempts to do so are suspect.
Second, I have found that in Minnesota, I have wholeheartedly disagreed with the analysis memorialized in these form letters. That is, I just don’t buy it that the issue could only be pursued in the case, and that it had no merit as an ethics complaint. And I have suspected that the form letter is just a dumping ground for the JSB. It’s just another way they say, “hey, you, member of the public, we are not going to take you seriously.”
Third, the JSB does not give Minnesotans any opportunity to address questions raised by the Board, positions taken by target judges, or preliminary assessments (for example, that it is an issue that should have been raised in the case). Why would that be? In the lawyers board process, once the target lawyer responds, the complainant is given an opportunity to file additional facts, documents, and explanation. Why would judges, public servants who have great power to harm citizens why they misbehave, have the last word in the JSB process? Why is the complainant aced out?
Until we as complainants know more we won’t be able to fix the problem.
The District of Columbia Council’s judiciary committee is considering providing more information to those who complain about the conduct of judges. For example, the Commission is going to discuss revealing more to complainants about why the complaint was dismissed or the extent of the investigation.
A DC blog reported that confidentiality is designed to protect the identity of the complainant, because complainants can be lawyers. Story here.
It appears that this was meant to imply that retaliation could occur if the lawyer’s name is released to the target judges. I don’t buy this is the reason for confidentiality. My experience in Minnesota is that someone at the JSB is that someone leaks the information to the target judge about who complained. When I made a complaint to the JSB in 2006 about a Hennepin County Judge, it was faxed directly to the judge. The fax legend at the top of the page? “Judicial Standards Board.” Not only was I not told that my written complaint had been faxed to the judge, I was affirmatively misled to believe it had not. This is unacceptable.
When a client of mine filed a complaint in 2011, the JSB told the judges about the complaint, and never warned us that they were telling them. So much for confidentiality protecting us. Then, according to target judge Lloyd B. Zimmerman, he was permitted to wait to respond to the JSB until he had filed a judicial order in another case. (I have the documents and transcript to prove all of this.) Then, he sent his judicial order in that case as his “response” to the JSB. This is appalling. If what Judge Zimmerman said is true, that means the JSB affirmatively allowed this Judge to taint the case of a client with a writing that was designed to protect himself. That is sooo opposite of what we expect of that agency. And the JSB says it is about protecting the public? C’mon now.
Don’t tell us confidentiality is for our protection if that’s just another way to placate. Don’t give us the prefab PR reason, speak to us as if we matter.
And don’t send us form letters telling us you dismissed it because we should have appealed it in the case. Don’t make up excuses for failing to do your job. Don’t trick non-lawyer members of the pubic into thinking they did not complain “correctly.” Don’t work hard to dismiss complaints.
JSB Director David Paull recently told me (when I called him, once again disappointed with the JSB) that everything the JSB can do can be achieved in court. That’s flat out false. Court activity and the JSB are like two separate silos on the same farm. The grain never moves from one silo to the other one. They are completely separate systems.
The court/appellate courts rule on the case itself. They are in one silo. But the courts cannot suspend a judge, cannot require a judge to take disability leave, cannot put a judge on probation and monitor his or her conduct. That is a completely separate silo, and Minnesotans are not wrong for bringing their plight to the JSB and expecting that something will get done. I am not willing to trust a system that can’t even tell the public the truth, to be the guardian of integrity and uprightness.
So let’s start by having more transparency in the process. Give the complainants real information about what is happening. Plug the leaks (even if that means investigating yourselves), warn us if you are going to officially notify a judge, and then let us know at the end what happened.