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 Cities.com (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.