Monthly Archives: December 2012

Judicial Misconduct: the Efficiency über alles Doctrine

I coined the term efficiency über alles. It refers to the trend to place efficiency in the courts above all else, at the expense of due process, at the expense of justice, at the expense of a search for the truth.

I don’t mean to offend anyone. I know there are those in the system who have worked hard to do more with less. And I am not faulting that.

But the term is intended to identify those areas where the cost-cutting has gone awry. We, the public, have a right to discuss decisions about the expenditure (or saving) or public monies.

Efficiency über alles is intended to make the point that efficiency should not be the sole, primary or even dominant policy that underlies decisions in the justice system. It is intended to remind us that it is a slippery slope from democracy, to a less-free form of government. As a now retired Minnesota judge has been known to say, dictatorships are efficient.

Since 2008 nearly everyone has had to tighten their belt. (Including private business and private households). But shortcuts in the justice system often come with a cost that is higher than the money they save. The justice system is a process-oriented system. That means that process plays a substantive role in the fairness of the system; it was never intended to be the quickest route between two points.

We’ve ended up with a system where certain judges will do just about anything to prevent an evidentiary hearing of any type, including trial. A hundred years of appellate law makes no sense if a party cannot obtain the evidentiary hearing to develop its argument. Or cross examine evidence submitted by the other side?

In some Minnesota courts, we’ve ended up with judges ex parte signing body warrants, where the law requires them to hold a hearing first. We’ve ended up with a bulk-signing of bench warrants at the end of a day in a system that used to value Fourth Amendment rights of the citizenry.

We’ve ended up with a system where stare decisis is twisted until it loses all shape, so that a district court decision can be affirmed, so there is no remand, no new trial, no new expenditure of judicial-branch resources after the appeal. This will cause the lore of law to disappear, replaced by the knowledge of each district court judge that whatever they do – the overwhelming chance is that they will be upheld.

We’ve ended up with a system where decisions have been made ‘en masse’ in certain areas, obviating that pesky need for each judge to make the decision on their own. We’ve ended up with a system where parties involved in a lawsuit are sent the message that litigating is bad and they will be called names and punished if they attempt to avail themselves of the courts as a method of peacably resolving their dispute. (I hear a lot of complaints about this in the family law context).

We, the public, have a right to call out these failures.

‘Efficiency’ is not an excuse to use the courts to deprive us of our constitutional rights. The courts are supposed to protect our constitutional rights.

And, it’s not fair every time the system is called on a deficiency, to claim the need for efficiency drove it. And the Legislature needs to stop telling the courts how to mete out justice.  It is not the Legislature’s place to tell the courts to place efficiency in the primacy position.

Look at Minnesota statute 490.15, Subd. 8.Delay of action reports.

The court administrator shall obtain reports from court administrators … on cases and other judicial business in which action has been delayed beyond periods of time specified by law or rules of court and make report thereof to .. the respective houses of the legislature.

Why do the courts have to explain to the legislature what they think is due process?  The whole point of the three branches of government is that each branch runs itself.  Only then can they be a check on each other.

This overuse of ‘efficiency’ as a justification is particularly unsettling because the amount of justice system resources that are gobbled up by judicial misconduct or other activities that do not advance the cause of justice (such as gossiping among employees) are staggering. So let’s not deny trials to criminal defendants, let’s not take short-cuts on due process, all the while permitting justice system insiders to use public resources for their own personal games and gains.

It is in this context that I coined the term ‘efficiency über alles.’

Happy holidays and Thanks

multi color thanksIt’s been a tough couple of weeks in the recovery biz.  All good, all worth it.  It’s just that sometimes it’s hard work to recover.  And it’s taken all of my energy.

I’m looking forward to the new year.

I want to thank everyone who has been there for me, who helped each in their own way, to help me through 2012.  You each know who you are, and I want you to know that I noticed.

The assistance has come in many shapes and sizes, which has been very meaningful to me.  Each person using their own position, their own skills, their own voice.  I choke up a bit thinking about how many people have helped.

As we are nearing the end of the year, I stumbled across a documentary, 2012:  Time for Change.


It sure was.

I hope that we can all (collectively) make it a worthwhile and meaningful change.

What is judicial reform: Equal – Not equal

Liberty Bell with Philadelphia buildings

One of my concerns, over the years, has been the absence of ‘equal protection’ rights for Americans.

I live in Minnesota, and as an attorney I have for a decade represented Minnesotans who have attempted to assert their ‘equal protection’ rights, in both state and federal courts.

Many people do not realize that in addition to the US Constitution, each State has its own Constitution.  The US (federal) Constitution provides the “floor” – the level of individual rights below which the states cannot go.  States can provide more rights to their citizens.  That is, they can interpret their own Constitutions to provide for rights above the “floor” mandated by the federal constitution.

The Bill of Rights (the first 10 amendments to the US Constitution) secures for Americans those individual rights that were presumed before the creation of the nation state of America.  They were, at first, not included in the US Constitution, because they were presumed by the framers to have existed before the constitution was created.

To me, this philosophical foundation is important to understanding our democratic form of government and all of constitutional law.  The basic notion is this:  the public (that is, the citizenry, the private, non-government people) ceded its power to government, so it could to govern them in the collective good.  This transfer of power was not a gift.   This transfer of power was in exchange for the inalienable, individual rights that became enumerated in the Bill of Rights.

You can read my prior posts on this topic, in particular relating to the courts, and my version of judicial reform, by going to the category, “What is Judicial Reform?”

During the national discussion of the proposed constitution, some in the Americas grew doubtful – what if government ‘forgets’ that it promised us (the public) these inalienable, individual rights in exchange for the power?  What if government just starts to do whatever it wants with that power?  To address that concern, the individual rights were codified in the Bill of Rights.

Surely that was enough to protect each individual American, right?

The Bill of Rights supplements the three-branch structure of government found in the main body of the Constitution.  This has been referred to as a system of “self-governance.”  Of course, it is also called our democracy.

It is not a pure democracy (like that in the ancient city of  Athens), because even by the time the US Constitution was created, there were already too many people for each to have his or her own voice in the way the government daily governed.  In America, the founder created a system of representational democracy, meaning that we vote for representatives to carry our voice in the roundtable discussion that is known as the legislative branch.

But like the ancient Greeks, we Americans each retained our power to challenge government.  We are specifically permitted to tell our government that we disapprove of the way it is using the power that we entrusted it with.

Of course, we can also tell government how it can do better in the future.

Those are our rights.  A right is something of substance that we can enforce.  A right is useless (and it is not really a right), if we cannot enforce it.  For example, you don’t really have the right to freely speak, if you have to withstand years of government investigation and prosecution, because you spoke.

If we don’t remember these philosophical roots, in my opinion, we go quickly astray.  The risk is that once government has our power, that it will function by and for government, and ignore the original pact with the public that created its power in the first place.

In the Civil War reconstruction era, the Fourteenth Amendment was passsed by Congress, then adopted by the People.  It overruled the US Supreme Court’s decision in Dred Scott v. Sandford (1857), which had held that Black people could not be ‘citizens’ of the US.

The Fourteenth Amendment also contains what has become known as the “due process clause,” which restricted state and local government deprivations of life, liberty, or property.

The Fourteenth Amendment also contained what is now called the “equal protection clause.”  This phrase promised all Americans equal protection under the law.  It specifically mandated that each state provide equal protection to its citizenry.

This is all found in Section 1 of the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis addded.)  Despite the plain language of the Fourteenth Amendment (a part of our constitution adopted by the People), the case law in the federal courts began to chip away at the right to equal protection.  Around the country, federal courts began to narrow and limit the plain language that promised equal protection for all.

Although a much longer discussion of the analysis federal courts used over the next 35 years to limit the plain language of the equal protection clause is warranted at some point, this post is intended as a summary.

In 1966, at the height of the ‘civil rights era,’ the US Supreme Court decided two cases on the same day:  City of Greenwood v. Peacock, 384 U.S. 808, and Georgia v. Rachel, 384 U.S. 780.  Lower federal courts have interpreted these cases somewhat differently.  See, for example, Perkins v. State of Miss., 445 F.2d 7 (5th Cir. 1972):

This sentence had led many interpreters of Peacock to conclude that the Supreme Court, despite the painstaking elaboration of removal criteria in Rachel, intended to limit the removal remedy exclusively to prosecutions in which the conduct charged as a criminal offense is protected by a Federal equal civil rights law (see discussion of the “scope of conduct” theory, infra).  It plainly did not.

Other lower federal courts cited to Rachel and Peacock to limit the removal of criminal cases by statute (the text of which tracks the Fourteenth Amendment almost exactly), based on the notion that Congress intended to benefit only the newly emancipated race.

This is just one example of how federal courts constrained the plain language of the equal protection clause.  For years, nearly every equal protection action brought under §1983, was dismissed based on the notion that the American seeking equal protection of the laws must first prove he was a member of “the” protected class, former slaves.

Since filing a removal petition of a state criminal case in 2002 (State v. Yeazizw (prosecuted by City of Minneapolis), 02-cv-4134), I have studied these phenomena.  My client base in state criminal cases has been largely African American.  Even if we assume that the intended beneficiary of the Fourteenth Amendment was the newly emancipated race, then how do we explain the record numbers of African Americans sent to prison, in clearly disproportionate numbers?  If that race was the intended beneficiary, then clearly we are viewing a failure.

In the year 2000, the US Supreme Court decided a case that could have set this right.  In City of Willowbrook v. Olech, 528 U.S. 562 (2000), in a PER CURIAM opinion, the High Court held:

The [equal protection] Clause secures every person within a State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by a statute’s express terms or by its improper execution.

528 U.S. 562 (2000), emphasis added, case here.

No longer did Americans need to prove they were former slaves to deserve the equal protection of the laws.  In fact, they no longer had to prove they were part of a protected class, at all.  Olech adopted the First Circuit’s doctrine, that any American can be a “class of one,” and demand equal protection – equal enforcement – of state laws.

This made sense.  Not only did Olech acknowledge the plain language of the Fourteenth Amendment (which we the Public adopted), it acknowledged a fundamental principal of our democracy:  that everyone is equal before the law.

So why hasn’t Olech had impact in the lower courts?  I leave scholars and jurists to ponder this question, which I will address in a later post.

As part of this look-back, I point out that in Peacock, the US Supreme Court, when narrowly construing the removal statute, listed other ways that Americans being wrongfully prosecuted in a state’s criminal justice system could come to the federal courts for help.  Sadly, nearly every avenue on this list is now gone.

The Peacock list (p. 383-84) Current state of the law
The US Supreme Court can accept the case on certiorari after the highest state court acts or declines to act, as occurred in Shuttlesworth v. Birmingham, 382 U.S. 87 (1965). “The US Supreme Court received 7,738 petitions for Writ of Certiorari (requests for case review) in 2008… This represents about a 20% increase over the number of cases submitted a decade earlier, and 234% more than the 2,313 the Court received in 1960.”  Opinions are written in about 75 of petitions filed (or around 1%).  Note 1 (emphasis added).
“Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions.”  England v. Medical Examiners, 375 U.S. 411 (Concurrence by Douglas, J.) Not really….  In that case, plaintiff sought an injunction in federal district court, which abstained and sent the parties back to state court.  Supposedly, the plaintiffs could have come back to federal court after the state court ruled on the state question, but because the plaintiffs litigated their federal constitutional question in state court and lost there, they were  not able to litigate the constitutional question in federal court.  See also the Pullman abstention doctrine and the Rooker-Feldman doctrine.
If the state prosecution or trial on the charge of obstructing a public street or on any other charge would itself clearly deny their rights protected by the First Amendment, they may, under some circumstances, obtain an injunction in the federal court.  See Dombrowski v. Pfister, 380 U.S. 479. Although it’s true, injunction is appropriate in certain cases, the trend has been for federal courts to deny these motions, sending the litigant back to state court for the criminal case.  See also the discussion of the Heck bar, below.
If they go to trial and there is a complete absence of evidence against them, their convictions will be set aside because of a denial of due process of law. Thompson v. Louisville, 362 U.S. 199. That case was the grant of certiorari, very rare now (see above).
If at their trial, they are in fact denied any federal constitutional rights, and these denials go uncorrected by other courts of the State, the remedy of federal habeas corpus is freely available to them. Fay v. Noia, 372 U.S. 391. Uh, no.  See AEDPA.
If their federal claims at trial have been denied through an unfair or deficient factfinding process, that, too, can be corrected by a federal court. Townsend v. Sain, 372 U.S. 293. That was a habeas case.  See above.
Under 42 U.S.C. § 1983 (1964 ed.) the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well. Monroe v. Pape, 364 U.S. 167. In 1994, Heck v. Humphrey barred numerous such cases.  Other impediments to §1983 cases abound but are beyond the reach of this summary.


So despite the guilt list in Peacock (you know, we are blocking you here, but you have all these other avenues), the ways in which Americans were supposedly able to keep the state criminal justice system in check through the federal courts, most of those are effectively gone.

This has left our country in a state where state court judges can do, literally, whatever they want, ignore the federal constitution, put innocent Americans in prison, use the criminal justice system to protect police and other government workers from civil liability, knowing that statistically, they will likely get away with it.  (This is a summary, but it is based on a decade of observations and litigation in which I have vigorously fought these very issues.)

And sadly, Americans have had little, if anything, they can do about it.

This is not to blame any specific judge or even court.  It is to paint an overview, to perhaps inspire new ways.

Perhaps each of these abstention doctrines, over time, had a good motive.  Perhaps they were always, as they appear to be, a way to control the workload of the federal courts.  I understand that there are not resources to try every case twice.  And I believe federal judges are overworked (they are currently expected to manage crushing loads).  But the answer is more judges, not less justice.  If instead of paying to keep innocent people in prison each year, we used those public monies for more judges, we could solve this problem.

Or, even with limited resources, if now and then, federal judges granted a removal petition, or enjoined a state criminal action, it would send a deep, resounding message through the state courts, a message much louder than any individual voice can make on its own.

Collectively, these abstention doctrines, the federal courts’ unwillingness over the past 35 years to plow into the problems in the state criminal justice systems, needs a fresh look.


In the next post in this series, I’ll discuss the Minnesota Constitution’s “equal protection” clauses.

Note 1, see Wiki, here

Minnesota JSB: Heading in the Right Direction

I have been a vocal critic of the Minnesota Board on Judicial Standards.  I also want to speak out when I think they are doing something right.  According to this story at Twin (Pioneer Press) here, it sounds like the JSB is heading in the right direction.

As a bit of background, I have railed against the use of the Lawyers Board as a way to punish lawyers who complain to the JSB about judges, railed against the way the JSB has facilitated that agenda.  I have opposed the JSB as defender of judges, and promoted the prosecution of judges.  We, the public, receive no deterrent value from the Judicial Canons, if that Board never publicly charges judges.

But it’s not the sheer number of charges that are at issue.  It’s the type of charges that a board with limited funding goes after, that matters.  I believe we have such vital problems with judges stepping across clear, easy to see lines, lines drawn to protect the integrity of the process, and I have not seen the JSB go after those judges in the past.

So it’s appropriate that I also step out and say, this time, good job.  I have not investigated the facts alleged by the JSB against Judge Perez.  Here’s a link to the JSB website, where you’ll find the formal complaint against Judge Perez, as well as his Answer.

Judge Perez is entitled to defend, entitled to due process.  I am not here assuming all allegations are true or that he has no defense.  But I am interested in discussing the type of charges in this case.

Falsification of official documents:  Judge Perez is charged with falsifying official records that related to his processing of cases.  Falsifying public documents is a problem in the courts.  It’s something I’ve been troubled about for some time, and I just wasn’t seeing anyone doing anything about it.  My clients have raised these issues in their cases (for example, complaining that a court transcript was not accurate), although we could not get appropriate attention to what we perceived as glaring facts.

Unfair distribution of workload/misuse of chief judge ‘authority’:  Judge Perez is accused of using his position as chief judge to get court staff to treat him and his case load differently.  This gets at several important issues.

1) What is the proper role of a chief judge in our courts?  The Federalist Papers did not envision the bureaucracy of the modern courts.  We usually think of judges in their role as judge (decision-maker on a case).  Rarely do we select judges for their administrative abilities, and, until now, rarely have judges been scrutinized for how they administer.  It looks like this case will examine the proper role of Perez as chief judge, and whether he abused that role.

Once we begin scrutinizing the role of judge as administrator, it makes sense to review other conduct pointed out in the Perez complaint, 2) using court staff to perpetrate judicial misconduct.  Perez is said to have told staff to skip him in the assignment of cases.  The larger issue is what authority an “administrator” judge has in the instructions given to staff (non-lawyers, non-judges).  Chief judges often have control over large number of non-lawyer/non-judge staff.  We need to examine that role to be able to ensure an impartial court process for the public.  If the facts of the Perez case are proven true, this case gives our justice system the opportunity to say, outright, that a judge cannot do through staff that which they are prohibited from doing themselves.  That it is not a defense to a judicial misconduct charge, that a non-judge took the actual actions.  And that staff cannot be used to treat others unfairly (here it was other judges, but that should also apply to parties to cases and lawyers).

I hope this case leads to some discussion of the role of ‘chief judge,’ why we have them, what are their responsibilities, and what are the limits on their authority.  It is dangerous to the public to give a judge a big staff, without a clear demarcation of authority.

This leads to a more macro discussion.  We’ve acknowledged that in the executive branch, a significant issue is the growth of the bureaucracy.  The President and Congress have even taken steps to reduce the federal executive-branch bureaucracy.  In the courts, the ‘administration’ has also grown.  But it’s grown up pretty much out of sight.  When I began to question the administration of the Hennepin County Court, I was targeted for a take-down.  We need to discuss court administration, initially, to ensure parties before the court are getting equal access, and equal treatment.

But an even larger issue looms before us.  What is working well in court administration (and there is a lot that is), what are the pitfalls, and where are the problems?  Should judges be managers – at all?  Or should we separate case-decision-making from administration?  As Americans engaged in self-governance, we are entitled first to know what is happening, and second, to comment on it unmolested.

What’s interesting about this case, is that it appears fellow judges may testify against Perez at the hearing.  That’s what should be happening.  I’m not talking specifically about Perez, but in general, judges should not sit idly by waiting for some member of the public to complain about another judge, or waiting for some lawyer to do it.  In the current state of affairs, those individuals are still too vulnerable to retaliation, and being ignored.  When judges make complaints about judges, or are willing to be interviewed and testify, my guess is the JSB is more likely to listen.

Judicial Reform: Time for a Paradigm shift

You’ve heard that phrase, “re-arranging deck chairs on the Titanic?”  It refers to efforts that are wasted, because they are useless.

Judicial reformists will take any progress they can get.  But what they really want is a paradigm shift for the Third Branch.

Stated another way, if we keep doing what got us here, we will never get out of it.  If we keep using the bricks to rebuild the house in the same way, we will keep seeing the same problems.

We all know there are problems.  America’s rate of incarceration is too high.  America has the fewest judges per capita of any so-called first-world nation.  We can’t stop tinkering (baby steps eventually lead to new roads).  But judicial reformists believe it is time to stop re-arranging the deck chairs.  Let’s figure out where the iceberg got us, plug the hole in the side, and get on our way.

Part 1 of this series discussed the roots of the American self-governance system (here).  James Madison believed that we should never restrict liberty.  The solution, for Madison, was to inhibit tyranny:  tyranny of government over the people and the tyranny of the majority.

Many know that the three branches of government were designed to thwart tyranny through checks and balances.

But its not as well known that the concept of federalism (having both a state and federal government) was also part of the effort to foil tyranny.  The concept as explained by Madison, was to cut the country first in half (federal v. state) and then again.  This would maximize the checks and balances.  (Federalist Paper #51, here).

If we forget the structure of our government, the tools we have been given to hinder tyranny, we can spend lots of time and resources re-arranging the deck chairs without getting to the source of the problem.

At times, we need the federal government to be a check (and balance) on the state government.  At times we need the state government to be a check (and balance) on the feds.

The Legislature keeps the executive in check through legislation.  And when the Legislature gets out of balance, the courts should be there to keep it in check.

For years in Minnesota, our courts have been doing the work of the Legislature, instead of keeping them in check.

The Legislature has many members, lots of staff, plenty of attorneys.  But the Legislature has taken the easy road, refusing to do the research necessary to comply with the Constitutions.  (The Minnesota Legislature must ensure its laws comply with both the US and the Minnesota Constitutions.)

Then, the Legislature has expected the courts to do their work.  The Legislature has expected people like me (or underfunded public defenders) to wait years for the right ‘test case’ to raise an issue in the courts, a constitutional issue that the Legislature should have researched in the first place.

Next, the Legislature has expected the Attorney General to go to court to argue that their statute should prevail.

Then, the Legislature has expected the courts to figure out how to make constitutional sense out of their laws.

Surprisingly, the courts have done this for the Legislature.

And what have the courts gotten in return?  In return, the Legislature has cut their budget to the point they can barely operate.  The Legislature has required the courts to collect money (filing fees), deposit it into the general fund, then required the courts to go back to the Governor and Legislature to beg to get some of that money back to fund the courts.

The underfunded courts, rather than sending badly drafted statutes back to the Legislature telling them – sorry, this does not comply (we call this “striking” statutes, or “declaring them unconstitutional”), the courts have tried in case law to make sense of any mess the Legislature puts out.

For an example, see State v. Crawley, a case from 2012, where the Minnesota Supreme Courts twists the statute into a pretzel in order to try to “save” it – rather than striking it, sending it back to the Legislature with a little note pinned to it that says, “try again!”

If the courts did this, the legislature would learn, quickly, that it cannot continue to abdicate its responsibility.

Cases that try to make sense of unconstitutional statutes do not protect the public.  This tradition has harmed the People of the State of Minnesota.  Because police officers don’t do 10 hours of constitutional research into case law before they arrest someone.  They look at the statute.  Narrowing statutes by case law creates a bigger mess than the Legislature created in the first place.

And, it only incentivizes the Legislature to continue to abandon its duty to the Constitutions.

In Minnesota, the Legislature has passed a statute that requires the Attorney General to support the statute if it is challenged by an individual.  In other words, the Legislature wants the AG to argue that the statute wins, and the constitution loses.  That is backwards.

The Constitution is a higher law than statutes.  What we’ve done over time, is to elevate statutes above the constitution.  Revitalizing our Constitutions is a  major part of judicial reform.

To make it worse, the Legislature has, through its selected counsel, for many years, waived its appearance in the district court and the court of appeals.  For everyone else, the courts require that arguments be made below before they can even be considered at the Supreme Court level.  Yet the Legislature has been given special privileges, has been permitted to waltz in at the last minute, making arguments the individual cannot possibly tackle at that late stage of the game.

The Third Branch has always had the power to stop this.

Based on simple judicial rules, the Legislature loses when it fails to appear in the district court.  It loses again when it fails to appear in the court of appeals.

The AG will likely say it lacks resources to appear in court every time a statute is challenged.  Time to get out the tiny violins.  The Legislature controls the purse.  If the AG is underfunded, who should bear the brunt of that?  Maybe the AG wouldn’t have to appear in court so much, if the Legislature drafted better statutes.

Imagine, as well, how many resources one individual does not have.  Yet we’ve forced individuals to be private attorneys general, to fight for the Constitutions.  We’ve expected individuals to take their time (sometimes they sit in jail during this) and resources (which they don’t have, either), to try to save our government.  Is it any wonder these people feel disenfranchised?

The paradigm shift?  Send the Legislature packing.  Tell the Legislature, in no uncertain terms, the Third Branch is here to be a check and balance on you, and it’s time you started doing your job.

Tell the Legislature, no more free rides.

Tell the Legislature that the courts don’t have enough money to be re-writing all the messy statutes that the Legislature puts out – not until the Legislature gets serious about funding the courts.

Oh, and by the way, the US Supreme Court has already decided, many years ago, that narrowing by case law is a dangerous proposition, and that the courts are in trouble if they use that technique, and do not ensure that every single case follows it.  (See Kemna v. Lee, here).  Why would the courts take on all that extra responsibility?  Especially if they are underfunded.

We were gifted, in this country, with a structure of government designed for multiple checks and balances.  But the branches must take that job seriously, or it won’t work.

Get tough, courts.  Stop letting the Legislature run roughshod over you.  You are a co-equal branch.  Let Minnesotans knows that the Legislature is expected to follow the law.  Get busy doing your job protecting the Constitutions.

Obviously, the point of cutting the country first in half, means that Americans are entitled to rely on the federal half, at times when their constitutional rights are not being protected in the state courts.  More on that in the future!  (See Page “Our federal lawsuit against the Minnesota courts” at the top of the homepage.)

Questions abound

Questions abound after Michael J. Davis entered an order in a case in which he is a party.

It started like this.

Our complaint was filed this morning.  (See Page entitled, “Our federal lawsuit against the Minnesota Courts at top of homepage.)  That complaint identifies Michael J. Davis as a defendant.

Along with it was filed a motion for ex parte TRO to enjoin Davis (who is the Chief Judge of the District of Minnesota as well as a defendant in the complaint) from having anything to do with the assignment of the case.  motion for ex parte TRO

And then he did just that.

The case was assigned initially to one district judge, who recused.  Recusal order signed by first judge assigned  The Magistrate Judge did not recuse.

Then a second judge was assigned, the magistrate remained the same.

A couple of hours later, Michael J. Davis, himself, signed an order purporting to disqualify the entire bench.  Disqualification order signed by Chief Judge Davis

The Plaintiffs are wondering what is going on here.

Judge Davis is a party to the lawsuit.  Plaintiffs had a motion pending that he not be involved in assignment of a judge, in any way, including that he not be involved in the out-of-district judge process.

That was apparently ignored.

Plaintiffs feel that Judge Davis should not have signed any order about this case.

It’s not clear why he did it.

As plaintiffs understand it, federal judges make their own decisions, including about recusal.  Plaintiffs did not see any order signed by the Magistrate Judge or the Article III Judge, suggesting that they had decided for themselves to recuse.

We can’t locate any authority for Judge Davis’ order.  His order does not cite any authority.  Even if there was an appropriate role for one judge in deciding to disqualify the entire bench, to our way of thinking, under these circumstances, that order should have been signed by the next-most-senior judge (not the judge who is a party).

It would be one thing if the randomly assigned Magistrate Judge had made the decision for himself to recuse.  Or if the Article III Judge did that.  It’s another thing entirely if Judge Davis decided that he was going to take other judges off the case.

We need to really watch the role of Chief Judge in this society.  We must insist on limits of that authority.

Plaintiffs’ case is about challenging this type of conduct when it occurs in the state courts.  Plaintiffs cite in their complaint, to a circumstance where a state “supervising” judge began to rule on another judge’s case.  Plaintiffs are about exposing that state judge conduct, to show why it’s wrong.  It’s ironic to see this development in this federal case.

We figure that Judge Davis did not have jurisdiction to sign the disqualification order.  Look at it, he signed an order in another judge’s case.

It appears our motion for ex parte TRO is still pending…

Citizens file lawsuit against Minnesota courts

Several Minnesotans have filed a lawsuit against Minnesota state courts (including the Supreme Court, the Court of Appeals, and the Hennepin County Court, aka the Fourth Judicial District), and several state court judges.  Some of those judges have now retired.

You can go to the page “Our lawsuit against the Minnesota Courts” at the top of the Home page to check out the complaint.

Several things happened fast today.  We’ll get you those asap.

Here are some snippets from the ‘introduction’ to the Complaint:

This lawsuit is the beginning of numerous claims intended to demonstrate why Minnesotans are not able to vindicate their federal constitutional rights in state court.  These are not just stories about plaintiff cases that did not succeed.  These are stories of civil rights violations by state court judges and staff. 

The introduction also includes:

If the [reason that federal constitutional rights are infringed in state court is because of lack of] money, then the discussion should be about money.  The State Courts are not only grossly underfunded, they had warned the Minnesota Legislature and Governor, repeatedly, that failure to adequately fund them would mean they could not protect constitutional rights.  What funding does the US Constitution require for the third branch of government, the watchdog branch, the branch responsible for protecting individual rights and liberty?

We will feature some of the Complaint’s specific allegations in separate posts.

The Next Chapter

hI have thought long and hard about the next chapter of my life.

I never asked to be the lawyer that would mount a fight for lawyer disability rights.  But it turns out that game is on!  Who would have thought when I set out on the journey to hold judges accountable, that it would lead into this area.

On some level, it makes sense.  In my humanness, I ended up being damaged by judicial abuse after sounding the alarm about judicial misconduct.  Retaliation, in its many forms, is a pretty common result for whistle blowers.  When I turned to the courts to help prevent more harm, they failed me.  When I asked for accommodation, they failed me again.  The combination of mounting evidence of judicial misconduct, ongoing health issues, and then, the failure to accommodate me, was the trifecta that took me down.

I do believe, had I been accommodated when originally requested, that my health would not have so suffered.  I did not ask for this job, the job was handed to me as part of my general judicial reform journey.

This is not an easy job.  But I am, now, equipped for it.

I am pleased to say I have recently gotten a “clean bill of health,” and although that does not mean there are no remaining issues, it means I am poised to be able to take on these issues, including by litigation.

In my deliberations, I have come to the following decisions:

  • I am done suffering in silence.  I am going to talk about how I was abused by certain judges.  I don’t want to stay in a victim space, I don’t think that’s healthy, either.  But part of the process of recovery is identifying the damage.  You cannot set off on the journey to recover, until you first identify the problem, mark that spot, and say, “I am starting from here.”  Life is complex, and I am not going to say that everything that has befallen me in the past two years was caused by one source.  I got pretty good during recovery from alcoholism at taking responsibility for my own “stuff.”  But I was damaged in part by judicial abuse, and I am not going to hide that, either.
  • I will continue to try to get the courts to respond to these issues.  I will continue to ask the state courts to take responsibility for their piece (not just for me, but for my clients), and I will continue to ask the federal courts to provide an impartial place to litigate these issues.  

I know this is asking judges to go outside their comfort zone.  But stop and consider how far I got shoved outside my comfort zone.  I stood up for the law.  I stood up for integrity in the process.  I stood up for my clients’ rights.  And look where it got me.  I have been forced to deal with some very uncomfortable things, in order to continue to do my part.

Of course, there will be those who will try to make it about me, hoping that if they can discredit me, that the issue will go away.  Clark is this…, Clark is that….  Really, that’s gone on for years.  People upset with me for refusing to engage in illegal behavior, or upset I point out problems with government, have called me all kinds of names.  This isn’t a new phase:  only the slurs have changed.  If I was going to let name-calling alone deter me, I would not have lasted a decade.

Moving this next chapter forward has been a significant part of my recovery.  Molding the clay that we hope will create judicial reform through litigation helped me to take my power back.  It helped me emerge from a cloud that had hung over me since I came into certain evidence a year ago.  I knew from the point I got that evidence, that my life would never be the same.  OMG was I right!  I have said before that this blog is therapeutic.  This project has, in the end, been therapeutic as well.  I appreciate those in my life who inspired me to do it, gave me hope, and saw me through it.

I appreciate those who are willing to give me the benefit of the doubt, who have decided that instead of attacking me based on rumor, that they will look at the evidence before making any decisions.

Look for more in the future…the next chapter…

Waiting in the Weeds

Wild birds...following the ploughAnd I’ve been waiting in the weeds
Waiting for my time to come around again and
Hope is floating on the breeze carrying my soul high up above the ground and
I’ve been keeping to myself
Knowing that the seasons are slowly changing…

I’ve been stumbling through some dark places
Now I’m following the plow
I know I’ve fallen out of your good graces
It’s alright now

And I’ve been waiting in the weeds
Waiting for the summer rain to fall upon the
Wild birds scattering the seeds
Answering the calling of the tide’s eternal tune
The phases of the moon
The chambers of the heart
The ebb and dart of small gray
Spiders spinning in the dark
In spite of all the times the web is torn apart and

I’ve been waiting in the weeds
Waiting for my time to come around again…

(Waiting in the Weeds, Don Henley/Steuart Smith, official Eagles Long Road Out of Eden site here).

A thanks to all of you, from all over, who have communicated to me that you care, and that you pray I keep fighting.

I feel better than I have in a year and looking forward to being back in the swing of things.

To all of you who were patient with me, I appreciate your humanness.