In 2002, I filed a federal civil rights action and federal district judge Paul A. Magnuson was assigned. The topic under discussion in this post didn’t have anything to do with the case itself. This case marked the first ever recusal motion that I filed on behalf of a client.
At the time the case began, Judge Magnuson was the Chief Judge of the District of Minnesota. But by the time the recusal motion was filed, Judge Magnuson had taken senior status, and Judge Rosenbaum had become Chief Judge.
Before I began representing clients who sued government, I had never had any problems with judges or with my license, never been sanctioned by a judge, never even had anyone even seek sanctions against me.
Of the various ‘issues’ I have had with judges over the 10+ years that I have been vigorously litigating against government, a disproportionate percentage of them have been with chief judges. In my humble opinion, each time we create a position of public authority, we must consciously institute limits on that authority. And, I don’t think we (society) have done that, when it comes to chief judges. It’s a challenge for any human being to stay within the rules when lines have been firmly drawn. It’s nearly impossible to stay within the lines – if there aren’t any.
The civil rights litigation was uneventful until July 2002. Out of a number of claims alleged, the defense attorneys filed a motion to dismiss only one. This was curious, but that was the decision defendants made.
After the ‘Rule 12’ motion was filed, we received seven (7) different versions of the police report about the incident. This was fairly shocking, and reviewing those different versions showed graphically how police had changed the story to fit their needs.
We sought to amend the complaint to add in the 7 versions of the police reports, and that motion was granted.
The defense attorneys affirmatively turned down the opportunity I gave them (on behalf of Plaintiff) to amend their Rule 12 motion in light of the now-amended complaint. Again curious, but that was the decision that they made.
A voicemail from a court clerk started a series of events which can be summarized as follows:
1. It became clear (and it was never disputed) that the Court had affirmatively communicated ex parte to the defense attorneys that they should withdraw their Rule 12 motion and re-file it. Plaintiff had not been included in that communication.
2. When Plaintiff counsel began investigating this, Defense counsel sent a letter confirming that they were withdrawing their motion “at the direction of the Court.” This confirmed the ex parte communication.
3. When I called chambers to inquire how to raise the issue with the court, a law clerk suggested that I send a letter. But when I did, Judge Magnuson sent a letter admonishing me, and stating that in the future plaintiff must file a formal motion. This was curious, as the Judge also stated that he had specifically “authorized” defendants to re-file their motion.
Now, I’m all for formal motions. That is, if everyone has to follow the same rules. I am against one side being allowed informal access to the Judge, while the other side must bring formal motions. I don’t think I’m alone in that belief.
The letter from Judge Magnuson was, in my opinion, unnecessarily emotional.
These issues were initially pursued informally. And Plaintiff waited months to see if the Judge would self-recuse.
As you might have guessed, when the defense “re-did” their motion, they had benefitted from the ‘re-doing,’ and they even came up with a new argument that ended up winning the case for them. It’s not clear where that came from.
When my client began to consider a recusal motion, I read every federal recusal case in the country that was available online, or in compendia. I also read some state cases.
I noticed a theme in my research that I found unsettling. There are a number of “technical” requirements for federal recusal motions. I noticed that a whole a lot of decisions I read did not reach the merits of the recusal motion. Instead, the motions were rejected due to ‘technical deficiencies.’
Given the underlying policy in the justice system to deal with issues on their merits, this was troubling.
Needless to say, with that research under my belt, my motion did not have any ‘technical deficiencies.’ Plaintiff argued that the defense attorneys had made their choice (not to amend their motion), and that should have been the end of it. The Court should not have intervened to give them advice.
Plaintiff’s argument was that the district court had essentially ‘coached’ the defense attorneys on how to better make their motion.
These were intellectual arguments, made after reading copious cases. Not only was the argument sound, ethics rules and case law supported the conclusion.
Recently, the Minnesota Supreme Court decided a ‘coaching’ case, holding that a state criminal judge had initiated two ex parte conversations with the prosecutor during which he coached the prosecutor on what arguments to make. Quoting a 1950 case, the Minnesota Supreme Court stated, “A judge ‘should not act as counsel for a party by raising objections which the party should make.’” The Supreme Court compelled disqualification of that judge. See State v. Schleinz.
My client filed a motion to recuse judge Magnuson in the civil rights case. And to his credit, Judge Magnuson granted the motion to recuse on February 18, 2003. Although it appears the Judge had become more emotional than is optimal, it also appears he understood that, and his maturity as a judge showed in his granting of the motion.
Judge Magnuson’s recusal order could have simply stated that he was recusing. Instead it stated, “[t]here are certain benefits to assuming senior status. One of those benefits is not having to put up with Plaintiff’s counsel.”
I found this unfortunate. It did not lead by example. Or rather, it did. This order set the stage for what became a literal string of judicial orders in which certain judges apparently thought it was permissible for them to take a swing at me (Jill Clark) via judicial order. (More about that in later posts.)
Over the years, I would become steeled to this type of judicial response. Although I learned to cope with it, that doesn’t mean I think it is befitting of the high office of judge.
Judges sit in judgment, accusing private people of bad acts, misconduct, and crimes. They ask members of the public who are accused, to sit quietly in their courtrooms and be respectful of the process. Should members of the public expect anything less from a judge who is accused?
Look for 2003: Lucy Wieland.