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.’