In my 20+ years of practice, I have litigated in a number of different arenas. Unfortunately, that often means a different set of procedural rule for each different area of practice. In some settings, there are two sets of rules. I have often wondered why the plethora of rules, when many of the rules for litigation deal with similar issues, despite the substantive topic. But the rules exist, and judges and lawyers are bound to follow them.
Most of the state procedural rules that I am aware of, are available for Minnesota attorneys on the Courts website (browse for “Minnesota judicial branch” and click on “rules” on the left-hand side). The Internet has changed the prior need for the State to pay for “publishing” the rules (provided by Minnesota Statute §480.05). Occasionally, we see proposed changes for procedural rules, and usually there is a period of public commentary (called “promulgation”). The work of deciding what to propose as rule changes, happens in various committees or task forces, which are created for the specific purpose, and then sunset.
Over time, I have been interested in the composition of the task forces, or committees that sit to discuss potential changes to these procedural rules. I can say this. I have practiced over 20 years in a number of areas (state, federal, civil, criminal, CHIPS, family, juvenile, and lawyer disciplinary defense). I am a magna cum laude graduate of Carleton College, and graduated Cum Laude from the University of Wisconsin Law School, which was in the top 20 law schools. As you can see from articles on this blog, I have commented on various aspects of our justice system, including cases, statutes, and rules. I have not sat in any committee room with my esteemed colleagues parsing through the rules and discussing potential amendments.
I have pondered this over time. Perhaps it is that I come from a different viewpoint. My experience in the justice system in the past 10 years, and my client base, are perhaps quite different from the typical committee-person. (See Minnesota Statute §480.052, in which the Legislature purports to tell the Supreme Court how to study its own rules, attempting to require it to conduct and implement that review in a certain way.) This post (which begins a series of posts on rules and statutes) provides my commentary on the procedural rules that have been devised to govern lawyer disciplinary cases.
I make this commentary having defended lawyers in these types of proceedings, and from now having gone through the process myself, commencing in 2006, and continuing to the present. This post is intended to point out problems caused by the rules as they are currently drafted. From the vantage point of a lawyer, but also from some experience of my own.
As a starting point, lawyer disciplinary cases are ones in which the lawyer is being investigated, or accused of violating a rule of ethics; these are called “misconduct” allegations, whether the accusation is against a lawyer, or against a judge. They are neither “civil” cases, nor “criminal” cases. They fall into a fairly rare type of proceeding called “quasi-criminal.” Basically, this means that there is more at stake than money (civil cases are about whether one person owes the other one money), but there is not to be any risk of imprisonment (like a criminal case).
My observations over time, are that the justice system has not done a very good job defining quasi-criminal proceedings, or informing lawyers and judges what rules and constitutional precepts govern the litigation. The lawyer disciplinary procedural rules (meaning the rules that tell the judges and lawyers how the litigation will be run) mention the Minnesota Rules of Civil Procedure. (See, for example, MRPR 9(c)). But the Minnesota Rules of Professional Conduct do not say when or how the rules apply, what if there is a conflict between the rules of civil procedure and the rules of professional responsibility, and when facets of the criminal justice system are required by the US or Minnesota constitutions.
I call rules like these “parochial” rules. They are vague, and it appears to me they are vague on purpose. They favor those who practice all the time in the area, because the reality is that the rules are interpreted in a “this is the way we have always done it” fashion, rather than through specific reference to explicit text.
When I first began defending lawyers in ethics cases, I read the rules to educate myself about how to litigate the case. As with any practice, a lawyer will see different things in a set of rules, depending on the cases and experiences in that arena. It is frustrating to be required to reach out to one’s adversary to ask “how it this done.” Litigation is generally an adversarial process, and it’s not always safe to ask the opposing counsel for help. You just don’t know whether you’ll get helpful advice, or if you will simply be advertising your inexperience, and inviting the other side to take advantage.
Now that I have been through several lawyer disciplinary cases, I come back to my initial impression. The rules are unnecessarily vague, they make oblique reference to civil rules, which only serves to confuse. And, most importantly, they are completely devoid of any reference to protecting the constitutional rights of the accused.
As I’ve said in other posts, revitalizing the constitutional rights of Minnesotans (Americans) is an important issue for judicial reformists. The Minnesota Supreme Court has issued some powerful opinions focusing on how Minnesotans can protect their federal constitutional rights. Why is there no opinion in this area of the law on that?
I can tell you one reason. Because most lawyers do not defend, but enter into a type of settlement with the Director (who is like the prosecutors in these cases). This is part and parcel of the parochial nature of the proceedings. There is a small group of lawyers who defend in these cases. And settlement is a common outcome if you retain one of those attorneys.
As I have experienced in nearly every area I have practiced in since the year 2000, if you are a lawyer who vigorously defends certain clients, you are in line for harsh and often bizarre treatment. Perhaps that is why there just aren’t that many lawyers who vigorously represent their clients. For purposes of this post, the point is that when few lawyers actively defend, the procedural rules don’t get much use – because the case does not go through all of the parts of the process. The Supreme Court (which is the court of first instance in these lawyer proceedings) does not often get the opportunity to interpret the rules within the cases, or to overhaul them when a case comes along that points up the systemic nature of certain problems with the rules.
The Supreme Court is urged to scrutinize the rules that are supposed to provide due process to lawyers. To explain to the bar what is can expect in these proceedings. And, how we, as lawyers, can protect our constitutional rights.
A US Supreme Court case, In re Ruffalo, 390 U.S. 544 (1968) guarantees American lawyers due process. That case specifically prohibited a process that would create a “trap for the unwary.” And yet, as this post and subsequent posts will elaborate on, that is precisely what happens to Minnesota lawyers, under the current set of procedural rules.
Because the process in lawyer disciplinary cases is neither civil, nor criminal, and because a lawyer has a property right in her law license, it is appropriate to consider the various writs that were available to protect rights, and in particular property rights, in the early days of this country.
This post is organized numerically by rule. The text of the rule, or a summary of it, is italicized and centered. My commentary about the rule follows in plain text. Some reference to the Minnesota Rules of Professional Conduct (the substantive rules of ethics for lawyers) is necessary. The discussion drifted into various statutes, most from Chapter 480, and those are discussed and commented on in pretty much the same way.
The Preamble to the MRPC tells lawyers we have a “special responsibility for the quality of justice….” “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” It goes on to tell us that, “…it is a lawyer’s duty, when necessary, to challenge the rectitude of official action” and to uphold legal process.
The Preamble continues,
As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
These are important words. But what is the Preamble? Is it mandatory for lawyers like other rules found below it? As an attorney, I have taken my duty zealously to represent my clients, very seriously. I have watched others operate with less zeal. If a lawyer is not zealous, can the lawyer be disciplined for that? If a lawyer is obeying the public-minded principles found in the Preamble, can a lawyer be disciplined for that? And what about the Director? Is the Director and the prosecutorial staff required to follow the Preamble?
RULE 2. PURPOSE. It is of primary importance to the public and to the members of the Bar that cases of lawyers’ alleged disability or unprofessional conduct be promptly investigated and disposed of with fairness and justice, having in mind the public, the lawyer complained of and the profession as a whole, and that disability or disciplinary proceedings be commenced in those cases where investigation discloses they are warranted. Such investigations and proceedings shall be conducted in accordance with these Rules.
This Rule is in conflict with several rules below relating to the timing of investigations and disposition. In my experience, the process was not prompt. I received a complaint by a judge in 2006, and that matter is still ongoing. In no stretch of the imagination is that prompt. I can’t see how that kept in mind the “public.” Surely it did not keep in mind the lawyer complained of. And the public and the lawyer are the first two on the list.
It does not benefit the profession as a whole if the process is not fair. That means holding everyone accountable to the same rules. Although the word “fair” tells me that fundamental fairness is important (and the lawyer’s right), that one word does not sufficiently create the process that will ensure that fairness.
Finally, the phrase “where investigation discloses they are warranted” must mean something. There are no gratuitous words in procedural rules. This phrase, read in conjunction with the prior two sentences, must mean the Director is charged, with deciding which lawyers and alleged rule violations should be prosecuted in the public interest. It is difficult to imagine how the Director would make that evaluation without considering the Preamble that precedes all of the specific ethics rules.
RULE 4. LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
(a) Composition. The Board shall consist of:
(1) A Chair appointed by this Court for such time as it designates and serving at the pleasure of this Court but not more than six years as Chair; and
(2) Thirteen lawyers having their principal office in this state, six of whom the Minnesota State Bar Association may nominate, and nine nonlawyers resident in this State, all appointed by this Court to three-year terms except that shorter terms shall be used where necessary to assure that as nearly as may be one-third of all terms expire each February 1. No person may serve more than two three-year terms, in addition to any additional shorter term for which the person was originally appointed and any period served as Chair. To the extent possible, members shall be geographically representative of the state and lawyer members shall reflect a broad cross section of areas of practice.
The Lawyers Board is funded by the State. As you’ll see below, it supervises the Director. The above rule makes no sense to me. If the Supreme Court appoints the Chair, and the Supreme Court is responsible for the bar of lawyers that are licensed by the Supreme Court, why does the Minnesota State Bar Association appoint most of its members? Shouldn’t the Supreme Court appoint? Or, the State Court Administrator? I, in particular, am troubled by this over-involvement of the MSBA, because that association (which has argued in the past it is not a public entity), has specifically adopted a position favoring appointment of judges over elections. As a proponent of election of judges, am I justified in fearing that those board members appointed by the MSBA will want me to lose my license so that I cannot run for judge?
I have never heard any justification for this composition. If someone out there thinks they can justify it, I urge you to communicate that to me. Hearing nothing, I will make my own opinion.
4(c) Duties. The Board shall have general supervisory authority over the administration of the Office of Lawyers Professional Responsibility and these Rules, and may, from time to time, issue opinions on questions of professional conduct. The Board shall prepare and submit to this Court an annual report covering the operation of the lawyer discipline and disability system. The Board may elect a Vice-Chair and specify the Vice-Chair’s duties. Board meetings are open to the public, except the Board may go into closed session not open to the public to discuss matters protected by Rule 20 or for other good cause.
As noted above the Board is responsible for supervising the Office of Lawyers Professional Responsibility (these are the prosecutors). That means, to me, if a prosecutor does something wrong, the Board is responsible. This is not a legal analysis (of the specific time of responsibility) as much as it is a practical one. If the Board is responsible, that means they must ensure there is adequate training, enforcement of internal rules, and that prosecutors do not, themselves, engage in any unethical conduct.
The Board is required to submit its annual report to the Supreme Court. I have looked at the 2012 Annual Report of Lawyers Board. It does not say it was prepared for the Supreme Court. In fact, that is noticibly absent from the report’s language. Instead, the report talks about how certain Canons relating to judicial elections were upheld by the Eighth Circuit. I am not sure how that tells us anything about how the Lawyers Board managed the OLPR during the year. Or maybe it does.
Curious about this MSBA-agenda-driven reference, I then looked at the OLPR website. Included there were two articles written by Director, Martin Cole. One was on “politics,” read Politics, Ethics, and the Bar, which was specifically about the MSBA’s position on constitutional amendments voted on last November, and one was on the Eighth Circuit decision upholding certain Judicial Canons relating to elections. (Judicial Election Rules Upheld, yes, about the same case the LB annual report mentioned.) This seems like a lot of mention of judicial canons, judicial elections, and MSBA politics, so an Office that claims to be “non-political.”
I found the annual report otherwise quite spare on content. It appears to have been created by a fairly low-level staff-member. And it doesn’t tell me, as a member of the public, what I really want to know. How did the LB ensure that lawyer disciplinary cases were fair? How can the LB justify picking on so many solo practitioners, instead of big firm lawyers? And why are so many criminal defense attorneys prosecuted? I would like to see an annual report that lists the type of case prosecuted, how much process was afforded (did they all settle?) and what types of attorneys were prosecuted. This would be great information to get, since I have not been able to get it yet from the Director.
I want to know more than just the amount of the budget. I’d like to be able to access, as a citizen, how much was spend on each prosecution (how much has been spent going after Jill Clark, for example?) and how long has each investigation taken. How much is spent on training, court reporters, and other expenses?
I learned recently that not one single Assistant Director has been charged with unethical conduct. Yet I have heard a pretty grisly story of an Assistant Director’s conduct, which I tend to believe would have resulted in charges for a private attorney. Could the annual report tell us how the Assistant Directors are disciplined, if not through ethics charges? I have personally observed conduct by Assistant Directors that seems blatantly unethical to me. Would the LB seriously consider a complaint against one of their own? These are the things inquiring minds want to know.
I am troubled by this rule’s open-ended “good cause” for closed sessions. Most government entities (and surely this is such), are quite limited in the reasons for closed sessions. This rule should include a list of specific reasons for closing a session. Otherwise, the LB could become a type of star chamber, having private meetings, perhaps even talking about members of the bar without their being able to attend and defend themselves.
4(d) Executive Committee. The Executive Committee, consisting of the Chair, and two lawyers and two nonlawyers designated annually by the Chair, shall be responsible for carrying out the duties set forth in these Rules and for the general supervision of the Office of Lawyers Professional Responsibility. The Executive Committee shall act on behalf of the Board between Board meetings. If requested by the Executive Committee, it shall have the assistance of the State Court Administrator’s office in carrying out its responsibilities. Members shall have served at least one year as a member of the Board prior to appointment to the Executive Committee. Members shall not be assigned to Panels during their terms on the Executive Committee.
I am not sure what it means to “have the assistance” of the State Court Administrator, but that is not even-sided litigation. Not unless I, as defending attorney, can also “have the assistance.”
RULE 5. DIRECTOR
(a) Appointment. The Director shall be appointed by and serve at the pleasure of this Court, and shall be paid such salary as this Court shall fix. The Board shall review the performance of the Director every 2 years or at such times as this Court directs and the Board shall make recommendations to this Court concerning the continuing service of the Director.
The Rule specifically says Martin Cole serves at the pleasure of the Supreme Court. I am not a fan of judges performing “evaluations” of staff. (More on that in later posts.) But at this point, I am a fan of the Supreme Court invoking its supervisory powers to deal with some of the issues that have arisen in the Director’s Office.
5(b) Duties. The Director shall be responsible and accountable directly to the Board and through the Board to this Court for the proper administration of the Office of Lawyers Professional Responsibility and these Rules. The Director shall prepare and submit to the Board an annual report covering the operation of the Office of Lawyers Professional Responsibility and shall make such other reports to the Board as the Board or this Court through the Board may order.
This is a great example of how these Rules contain conflicting language. In 5(a), just above, the Director serves at the pleasure of the Supreme Court. Here, the director is “responsible” and “accountable” directly to the Board. And the Board is accountable to the Court. This type of internal conflict needs attention (here and elsewhere in the Rules). But for now, I am content knowing that the Supreme Court can ask the LB to account to it. And it urge it to do so. Some of the questions? How much money is spent using the Lawyers Board to try to achieve appointment of judges, and prevent elections?
5(c) Employees. The Director when authorized by the Board may employ, on behalf of this Court persons at such compensation as the Board shall recommend and as this Court may approve.
This section does not make logical sense. And I’d be interested to know whether the budget really operates this way. But for now, it sounds to me that the Assistant Directors serve at the pleasure of the Supreme Court.
5(d) Client Security Board Services. Subject to the approval of this court, the Client Security Board and the Lawyers Board, the Director may provide staff investigative and other services to the Client Security Board. Compensation for such services may be paid by the Client Security Board to the Director’s office upon such terms as are approved by the Lawyers Board and the Client Security Board. The Lawyers Board and the Client Security Board may also establish further terms for the provision by the Director of such services.
Private lawyers are required to avoid conflicts of interest. This Rule perpetuates an built-in conflict of interest for the Director’s Office. The Rule incentivizes prosecutors at the OLPR to investigate lawyer trust accounts, to move the file over to the client services board, then sell that board services. I’m publicly calling for an investigation of this conflict. Prosecutors need to follow the rules of ethics, too.
RULE 6. COMPLAINTS
(a) Investigation. All complaints of lawyers’ alleged unprofessional conduct or allegations of disability shall be investigated pursuant to these Rules. No District Committee investigator shall investigate a matter in which disqualification would be required of a judge under Canon 3 of the Code of Judicial Conduct. No employee of the office of Lawyers Professional Responsibility shall be assigned to a matter if the employee’s activities outside the Office are such that a judge with similar activities would be disqualified under Canon 3 of the Code of Judicial Conduct.
Investigation is mandatory under this section. It’s easy for me to see that these investigations by public prosecutors, must protect constitutional rights. I’m hoping these prosecutors are being educated in the constitutional requirements. To sum it up, the constitutions require: thoroughness, neutrality and diligent. And, readjusting if new evidence comes to light.
If an investigator has a particular bias or agenda, this rule should require disclosure. I learned after some time into the investigation that Craig Klausing is the former Mayor of Roseville. As such, he likely forged relationships with police there. My practice has involved scrutinizing police conduct, and lawsuits against municipalities. I cannot say I am confident that a pro-municipal viewpoint has not entered into the investigation of my case. Over the past couple of years, I am more and more convinced at the important of disclosure in this business. By judges, but also by others in the justice system. If disclosures are made, people feel they are being dealt with in a straightforward manner. That instills trust. Even if the details seem unimportant at first, when they are learned later, it’s only human nature to then distrust the person who did not disclose. (More on this in later posts.)
It’s curious that this Rule includes outdated number. (The Minnesota Code of Judicial Conduct was amended in 2008. It’s time to amend these rules and catch these technical, but important details.)
5(b) Notification: Referral. If a complaint of a lawyer’s alleged unprofessional conduct is submitted to a District Committee, the District Chair promptly shall notify the Director of its pendency. If a complaint is submitted to the Director, it shall be referred for investigation to the District Committee of the district where the lawyer’s principal office is located or in exceptional circumstances to such other District Committee as the Director reasonably selects, unless the Director determines to investigate it without referral or that discipline is not warranted.
This rule (and a similar rule found at 7(d)) is fraught with problems, and a breeding ground for politics. At first blush, the rule permits the Director, whenever he chooses to do so, to re-route a lawyer investigation away from the District Committee, to an Assistant Director. What criteria does the Director use in making these decisions? Are they made by the Director, or by the Board? In 2002, the United States Supreme Court in Chicago v. Morales, held that the statute must, on its face, inhibit discriminatory enforcement of the law. Given the types of lawyers that I have observed getting the “special” investigations by the Director’s Office, this rule needs revamping. If the “without referral” language is to remain at all, the criteria for that re-routing should be printed right in the text of the rule.
Interesting, those of us who have watched these rules change over time, note that there used to be at least some criteria for the re-routing. The criteria was fairly vague, but at least it was there. The real question, now that it has been removed, is, who removed it, and why? Who wanted to give unbridled discretion to the Director to decide which lawyers deserves the special investigations?
RULE 6Z. COMPLAINTS INVOLVING JUDGES
(a) Jurisdiction. The Lawyers Professional Responsibility Board has jurisdiction to consider whether discipline as a lawyer is warranted in matters involving conduct of any judge occurring prior to the assumption of judicial office and conduct of a part-time judge, including referees of conciliation court, not occurring in a judicial capacity. The Board on Judicial Standards may also exercise jurisdiction to consider whether judicial discipline is warranted in such matters.
In May 2012, the Minnesota Supreme Court decided State v. Pratt. See my post on that case, categorized under “About our Justice System.” Although most of the media would not name him, I informed my readers that retired Hennepin County Judge Steven Z. Lange had been determined to have failed to disclose the nature of his relationship with the Hennepin County Attorney Office while he was sitting on the bench in a criminal case. Retired Judge Lange had been acting as an expert for the HCAO, a role where he would use lawyer skills, but not sit as a judge. Rule 6Z(a) makes it clear that the Director need not receive a complaint to investigate a lawyer no longer serving as judge. Why didn’t the Director commence an investigation in this case in which the Supreme Court already found a problem?
Also, I’m wondering if the Director (or Assistant Director Klausing) is following this blog. If so, then you saw my post about State v. Pratt, and about Steven Z. Lange. Please let your public know, so they can assess your decisions.
If the Director has a justification, I invite that comment. I will certainly consider what Martin Cole has to say. However, hearing nothing, I will persist with my opinion that the OLPR is as political as it can be. That the decisions about who to prosecute depend on who the person is, and what their politics are, and little upon whether a rule of ethics has been violated.
Here’s another example. In 2010, the Minnesota Supreme Court found prosecutorial misconduct by a Hennepin County criminal prosecutor. Mr. Cole, why didn’t your office commence a “Director’s investigation” into her conduct? Perhaps it is, as Mr. Cole has himself told me, that the OLPR has for years had a policy of refusing to investigate prosecutors. That smacks of the Director protecting attorneys that perform the same function as they do, and little of enforcing rules of ethics. Canon 3.8 contains special, heightened rules of ethics for prosecutors. That group of lawyers should be more readily investigated, not less. This is particularly true since criminal prosecutors have been granted absolute immunity from civil lawsuits. That means one of the only ways the public can scrutinize their conduct is through the disciplinary process.
Even more curious, when I went to look at the computerized docket for that case at the district court level (the MnCIS computer system who Chief Justice Lorie Gildea has bragged about, and which Robert Blaeser implemented in Hennepin County), the name of that prosecutor was missing. Who deleted her name, and why? Is that a special service at Hennepin County Courthouse? And does it apply only to government lawyers? I have trouble believing that my name would be removed if I requested it. The prosecutor for which prosecutorial misconduct was already found in 2010 is Judy Johnston. I would like Mr. Cole to inform his public how his decision not to investigate this prosecutor “further[ed] the public’s understanding of and confidence in the rule of law and the justice system … in [this] constitutional democracy….” I await his comment, and then will likely have some of my own.
And if the Director counters that it did not know about this opinion, I have another question. Did anybody email the OLPR the opinion? Because a number of court orders about me have been sent over to the OLPR. What is the culture in our community – who gets ratted on, and why? For me, I will tell you that I had not one single complaint before I started suing government on behalf of clients. When I announced I would run for the Supreme Court, it began raining complaints. Just how is that explained?
I’d also like to note that in D. Minn. 06-cv-4251 (DSD-SRN), a public federal court order was issued that teed up for trial, the question of whether then-criminal-prosecutor Martha Holton-Dimick was telling the truth when she claimed that she had listened to all of the audio recordings before deciding to charge out a criminal case. I had been disturbed by Holton-Dimick’s conduct during the state criminal case. (You can read the transcript of a court hearing, here. It was the worst temper tantrum I had ever experienced by a lawyer, during my entire career.) But the order was issued by a federal judge after Holton Dimick signed an affidavit in the federal civil case. You can read the Summary judgment order in Richardson. Did the Director’s office go online to locate this federal court order, and commence an investigation of Holton-Dimick?
Does the fact that Holton-Dimick was working to be appointed judge have anything to do with why the Director did not go after her?
Curiously, when Holton-Dimick had been selected by the Judicial Selection Commission (which supposedly considers temperament), as one of the three finalized for a Hennepin County judge slot, I sent a letter to the entire Legislature, pointing out that I had experienced her temper tantrum. And that I was aware that a number of judges had made complaints about her. I informed the Legislature (which was considering a Quie Commission proposal at the time), that I had transcripts in my office supporting both of those statements. No one contacted me.
Apparently, in this political community, there is little interest in enforcing ethics rules against certain attorneys. It is not difficult for me to see the pattern. If the Director has been investigating Holton-Dimick, I give him this opportunity to divulge it (pursuant to Rule 20, you can divulge the existence of an investigation). If not, why not?
I’d also like to point out that in winter 2012, Holton-Dimick, then Deputy of the Criminal Division of the Minneapolis City Attorney Office, sent a letter to a Hennepin County Judge, which it has been alleged, attempted to convince a judge not to accommodate a lawyer’s disability. By my reading of Rule 6Z, that conduct of a lawyer prior to becoming a judge must be investigated.
6Z(b) (2) Investigation. Complaints of a judge’s unprofessional conduct occurring prior to the judge assuming judicial office shall be investigated by the Office of Lawyers Professional Responsibility and processed pursuant to the Rules on Lawyers Professional Responsibility. The Board on Judicial Standards may suspend a related inquiry pending the outcome of the investigation and/or proceedings.
This language conflicts with other sections. This language indicates the Director shall investigate complaints. I intend to print out this blog and mail it to the Director as a complaint. He can let us know publicly that he has received it and it commencing the investigation.
Comment to 6Z: Although a fair number of complaints received by the executive secretary and the Office of Professional Responsibility are frivolous, there have been relatively few complaints concerning conduct occurring prior to a judge assuming judicial office. Thus, the committee believes that this procedure will not result in a needless duplication of efforts.
What is an “executive secretary?” I do not see that term above nor defined elsewhere in the Rules. And what types of complaints are “frivolous?” And how is that term defined? I surely hope this is not suggesting that most complaints against judges (or conduct by lawyers before they became judges) is frivolous. That would be glaring viewpoint discrimination.
Again, these Rules need to be updated, to correct for the re-number of the judicial ethics rules.
7(c) Time. The investigation shall be completed and the report made promptly and, in any event within 90 days after the District Committee received the complaint, unless good cause exists. If the report is not made within 90 days, the District Chair or the Chair’s designee within that time shall notify the Director of the reasons for the delay. If a District Committee has a pattern of responding substantially beyond the 90 day limitation, the Director shall advise the Board and the Chair shall seek to remedy the matter through the President of the appropriate District Bar Association.
Generally, in the construction of a statute, the specific controls over the general. The 90-day turnaround in this Rule should not relate solely to the District Committee. It should also relate to the lawyers being investigated by the Directors’ Office.
In my experience, lawyers being investigated by the Directors’ office have to bear up under literally years of investigation. This consumes lawyer resources, and takes time away from client matters and duties to courts. I am asking that when the Director is explaining to the public what types of lawyers are special enough to warrant investigation by his Office (as opposed to a District Committee), that he also explain how investigations can drag on for years. It is of particular concern, since this Rule permits the Director to admonish District Committees that habitually take more than 90 days. Director direct thyself.
(e) Notice to Complainant. The Director shall keep the complainant advised of the progress of the proceedings.
Lawyers who make complaints about judges are not kept informed of the status of the investigation or proceedings. Why would judges (elected officials, where the public has a right to scrutinize their conduct) have more privacy than private lawyers, who have a reputation and a business to uphold?
RULE 8. DIRECTOR’S INVESTIGATION
(a) Initiating Investigation. At any time, with or without a complaint or a District Committee’s report, and upon a reasonable belief that professional misconduct may have occurred, the Director may make such investigation as the Director deems appropriate as to the conduct of any lawyer or lawyers; provided, however, that investigations to be commenced upon the sole initiative of the Director shall not be commenced without the prior approval of the Executive Committee.
The word “May” conflicts with Rule 2, and the Rule 6 mandatory language (and “promptness” requirement). The rule requires Executive Committee approval before the Director can commence an investigation on his own initiative. I believe this was included to ensure that the lawyer was informed of the identity of the complainant (so the complainant can be deposed and cross examined at the hearing for bias or other improper motivation). Otherwise, the Director would be able to take the complaint, sideline the complainant, and just proceed as if it were a “Director’s investigation.” Think I’m too suspicious?
8(b) Complaints by Criminal Defendants. No investigation shall commence on a complaint by or on behalf of a party represented by court appointed counsel, insofar as the complaint against the court appointed attorney alleges incompetent representation by the attorney in the pending matter. Any such complaint shall be summarily dismissed without prejudice. The Director’s dismissal shall inform the complainant that the complaint may be sent to the chief district judge or trial court judge involved in the pending matter. The judge may, at any time, refer the matter to the Director for investigation. The Director may communicate with the appropriate court regarding the complaint and its disposition.
This Rule clearly protects public attorneys (here, public defenders) at the expense of the client who is seeking to have their conduct scrutinized. But after protecting those attorneys, the rule turns around and permits some kind of communication (behind the scenes?) to the judge in the case, without any assurance the public defender is entitled to a process to defend himself (or even to notification before the issue is raised during the case). Why aren’t all lawyers treated the same? And isn’t informing a judge on the file a breach of the public defender’s right to confidentiality (see discussion of Rule 20, below)?
This rule violates the equal protection clause(s) of the Minnesota Constitution.
8(c) Investigatory Subpoena. With the Board Chair or Vice-Chair’s approval upon the Director’s application showing that it is necessary to do this before issuance of charges under Rule 9(a), the Director may subpoena and take the testimony of any person believed to possess information concerning possible unprofessional conduct of a lawyer. The examination shall be recorded by such means as the Director designates. The District Court of Ramsey County shall have jurisdiction over issuance of subpoenas and over motions arising from the examination.
This provision is similar to Minnesota Statute §388.23, which permits criminal prosecutors to issue a subpoena before the case starts, and throughout the case without obtaining court permission. Neither this rule, nor that statute, require any notification to the defense. Both sides, in every case, are entitled to obtain the evidence needed to litigate the case. This Rule provides an unfair advantage to the Director. Each lawyer reading this post should wonder – is the Director sitting on records he obtained about me through subpoena? The process for subpoena’s should be equal for both sides. Subpoena’s (which are issued by courts, not prosecuting agencies) should involve the court, be served on both parties, ensuring equal access to evidence and a fair process. If the criminal prosecutor wants to obtain documents without putting the defendant on notice, only a warrant (issued by a neutral magistrate) will suffice to protect constitutional rights. Nothing I had read gives the Director the authority to seek a warrant, even from a judge.
The rule leaves it to the Director to decide how to record the statement. That is troubling to me, as I have known the Director to keep sparse notes, or even fail to memorialize certain conversations.
RULE 9. PANEL PROCEEDINGS
(a) Charges. If the matter is to be submitted to a Panel, the matter shall proceed as follows:
(1) The Director shall prepare charges of unprofessional conduct, assign them to a Panel by rotation, and notify the lawyer of the Charges, the name, address, and telephone number of the Panel Chair and Vice Chair, and the provisions of this Rule. Within 14 days after the lawyer is notified of the Charges, the lawyer shall submit an answer to the Charges to the Panel Chair and the Director and may submit a request that the Panel conduct a hearing. Within ten days after the lawyer submits an answer, the Director and the lawyer may submit affidavits and other documents in support of their positions.
These timelines are too short. The lawyer’s entire career could be at issue. Their license is surely at issue, and perhaps their entire business. Fourteen days to “answer” is shorter, even, than the rules of civil procedure. There is no discernible reason for this, unless it is to press the lawyer into a tight spot. The Director gets to pick the timing of the charges; so the Director’s case is likely all ready to go. Further, in my opinion, the Assistant Directors have relatively light workloads. They therefore have the ability to focus their resources on the one case moving into the charging phase. Litigator-lawyers, however, usually have large workloads, with multiple filings and hearings. They have a duty to their clients, and to judges. The target attorney may have extreme difficulty finding the time to focus on the charges, in order to formulate an appropriate answer. The requirement that within 10 days the lawyer have affidavits all ready for the PC hearing is an impossible deadline, so all the reasons noted above. But further, even though the Rules say the lawyer can propound civil-type discovery on the Director (interrogatories, requests for admissions), there is no real opportunity to do this with the deadlines being so short.
Rule 9(a)(2) requires that the Panel make its decision within 40 days after the documents are “submitted.” This shows that, usually, the lawyer does not get a hearing. Further, it decreases the possibility that the Panel will issue a written finding as to whether there is or is not probable cause. Even in cases where a Panelist may want to issue a written opinion, panelist are for the most part volunteer lawyers, and their own workload in their own practice will likely take precedence over writing a lengthy opinion regarding the LB case.
The Director seems to not want any written PC opinions. This is a problem for several reasons. In my case, the Panel found no probable cause for the substantive charge (lack of candor to the court). Had the Panel issued a written opinion noting why it found no PC, that would have likely precluded (estopped, in lawyer language) the Director from crafting an admonition for the vague Rule 8.4(d) charge.
These so-called “private” admonitions are a big problem in this area of practice. They are drafted by the Director (rather than the Panel). Again, the Director is imbued with the characteristics of the tribunal. The Director can, and does, put these into evidence at later proceedings. Which means they aren’t really private. And they aren’t really admonitions. They function as full-scale findings of misconduct, and follow the lawyer throughout their career. It would serve the public interest if the Director would disclose who the admonitions are sent to. For example, are they sent to the MSBA? For reasons that are unclear to me, the MSBA facilitates appointments to various nonprofit and government boards, such as the Client Security Board. The MSBA registration form asks the lawyer who is seeking the appointment if they have ever been disciplined by the LB. This leads one to presume that a “yes” answer would jeopardize that lawyer’s appointment. A single “private” admonition may well keep a lawyer off all such boards. And those boards are often the picking ground for service on more powerful boards in and around the justice system, such as the Lawyers Board or the Board of Judicial Standards. In this way, a target attorney who receives an admonition can effectively be aced out of any real opportunities for advancement in the community. And that would affect that lawyer’s resume when they come to apply for appointment as judge.
The Director is extremely powerful, it turns out, in deciding who will or will not be a judge.
With that much power and discretion, is it any wonder the public has significant questions for the Director, and expects significant disclosures? For example, why did the Director refuse to investigate Dana Banwer, who then served as Deputy City Attorney for the Criminal Division in the Minneapolis City Attorney Office? That position, too, is often a jumping-off spot for judge. And, Banwer applied to be appointed judge, a number of times. If Banwer was not investigated, there was no chance of any charges. And if no charges, there was no chance for an admonition. Later, when Banwer applied to sit on the Client Security Board, she was able to check “no” when asked by the MSBA if she had any prior discipline.
Not only was Banwer not investigated. But the attorney who complained about Banwer was investigated, about a statement made about Banwer. So much for immunity and absolute privilege for the complainants (see below).
But there is more. Because the Director of the Office of Lawyers Professional Responsibility is also a jumping off spot for judge. Now Director Cole’s article praising the MSBA for taking a “position” about a “controversial” topic (while simultaneously prosecuting me for speaking out about issues of public concern), and the selection of who to charge and who not to charge comes more into focus. If Cole wants to be appointed judge, wouldn’t he be inclined to try to please the faction that wields control over the appointment process, and the ramp-way to the appointment process?
And here’s the funny thing. Both Cole, in his article, and the Lawyers Board, in the 2012 annual report, praised the Eighth Circuit decision that upheld the judicial canon prohibiting judges from endorsing each other for office. As I understand it, to be appointed judge, lawyers usually seek references from judges in the jurisdictions in which they want to sit. This process is well-known to insiders, even though I only became aware of it within the last year or so. Each letter or email from a judge, supporting the appointment of lawyer to judge, is an endorsement. The only difference, is that this type of endorsement is hidden from the public, hidden from most lawyers in the community, and not disclosed even when we ask. I’m wondering if the LB and the Director would comment about why secret endorsements are somehow not endorsements requiring investigation and possible sanctions? And, I’d like to know whether Cole is seeking to become a judge, and whether he has been “endorsed” by any judges.
Without disclosure of these important facts, it’s difficult for the public to get a handle on why the Director’s office has seemed so intent upon prosecuting complaints made by certain judges, or prosecuting certain lawyers.
Rules 9(c) and 9(d) require depositions and other discovery within ten days of the pre-hearing meeting.
But the Rules do not set the pre-hearing meeting. This permits the Director to fast-track the pre-hearing meeting in order to prevent or at least minimize discovery by the target attorney.
Rule 9(c) also provides that if a lawyer fails to admit, the Director may recover expenses as in a civil matter. It’s not clear what “civil” matter means. There are no criteria for this “sanction.” (Further, a sanction levied in a Lawyers Board proceeding is likely fodder for most proceedings.) But the Rule is certainly intimidating to an attorney like me, who likely cannot afford to pay the expenses of a public agency. And, since in my experience government prosecutors hold great sway with judges (and judges serving as Referees), the attorney might be afraid to defend, not because of the facts or the law, but because they fear the system will punish them merely for doing so. This is tantamount to asking a criminal defendant to pay for the cost of prosecuting him against his will, and needs to be changed.
Even once the trial begins, the Director’s Office has the advantage. Rule 9(e) provides that “genuineness” is admitted unless the target attorney objection within ten days of the pre-hearing meeting. Ten days is too short to review all of the evidence. But the Rule also fails to explain why an evidentiary hearing for a lawyer would be any different from any other evidentiary hearing, in which the party who offers the exhibit bears the burden of foundation, relevance, genuineness and all other rules of evidence.
Permitting the Director set the pre-hearing meetings, instead of the tribunal doing so, favor the Director (who can control timing) but also imbues the Director with the status of the tribunal. This causes further intimidation of the lawyer, and likely causes some lawyers to want to plead.
Rule 9(e) requires that the target attorney meet with the Director to formulate stipulations. This is like forcing settlement discussions. That is not permitted in criminal cases, and there seems no reason to condone it here. In my experience, the Director asks the target attorney to agree to the sentences in the charging document as drafted, as opposed to succinct facts. This Rule also caused me to spend significant time drafting proposed stipulations for the Director to consider, and that took precious time away from preparing for the hearing. The Director did not consider the stipulations that I proposed, so one wonders how many double standards exist in this field. I was being charged with violating a court rule (or actually, with complying with a court rule, but that’s another story), and the Director blatantly violated this Rule by refusing even to consider my proposed stipulations.
Under Rule 9(f)(3), the Director is to send the Panel a copy of the charges against the lawyer. But the Rule does not require the Director to send along the lawyer’s answer to the charges. This means the Panel only sees one side, and could very well be pre-disposed even before the hearings starts.
Pre-hearing tainting of the Panel continues with the requirement that under 9(f)(3) that the Panel receive all of the potential exhibits in advance of the hearing. And the Panel is serving as the trier of fact. Many of those exhibits might not actually be admitted. Providing the exhibits ahead of time could very well taint the Panel against the lawyer before the lawyer comes into the room.
Further, although the Rule says both sides should provide their exhibits directly to Panel members, I my experience, the Director controls all access to the Panel, and to the Board. Lawyers who seek to send something to either are told to submit them to the Director’s Office, and the Director will send them on. Of course, the lawyer never knows whether this really occurs. Even the risk that the opposing-party-advocate will not fairly and timely transmit exhibits, creates an unfair process.
It’s very difficult to determine the role of the Panel from the Rules. On the one hand, the Panel seems to serve as a district judge would in a criminal case, determining if there is probable cause to stand trial (under Minnesota Rule of Criminal Procedure 11, also known as a Florence hearing). That role would encompass fundamental fairness, but also a judgment about the quality of the prosecutor’s evidence, and whether it would serve a society purpose to put the defendant through a trial (which Florence itself acknowledges is a stressful and humiliating experience). This is certainly not occurring in the context of lawyer disciplinary cases. In fact, the Manual drafted by the Director, and approved by the LB, tells Panels to decide whether the facts are as the Director says they are. At first blush, this appears to ask the Panel to find facts. That is, unless you review several charging documents. The Director’s office (of course, fully cognizant of the language in the Manual) has become expert in drafting charges that contain many words but say nothing. In other words, most sentences, rather than making an allegation that the Director intends to prove (such as, the lawyer wrote a letter and the contents of the letter were deceitful), the Director simply includes the fact that the lawyer sent the letter. Easy, there, for the Panel to find that that is as the Director says it is. Then, at the bottom of each charge, the Director lists (often without even parroting the language of the Canon) the various Rules claimed violated. The Director usually does not show the nexus between the facts alleged, and the wrongful conduct. That nexus is the heart and soul of a complaint, and I have located no reason why the Director (which regularly charges lawyers for violating Canon 3.1), should be permitted to continue this practice.
I have noticed a few characterizations. But I have not found that the PC phase parses through the facts to determine whether there is a real basis to them. This is harder to track (and impossible to “appeal”) because of the absence of written PC orders. This renders the PC phase useless, or at least duplicative. And, if nearly every charge by the Director results in public charges, the goal of protecting the lawyer from loss of public reputation, is not accomplished. Instead, in my experience, the process (which is supposed to be confidential) is really the ramping up of the destruction of the lawyer’s reputation, with select people “behind the scenes” learning that a lawyer is being targeted for destruction. This permits insiders the opportunity to generate or refer additional complaints against the lawyer. These, as is discussed below, can be added to the public charges without any PC process at all, therefore nearly assuring the lawyer’s license will be lost.
Even though these Rules cite to the Rules of Civil Procedure, they contain no vehicle for challenging the charging instrument assuming all of its facts are true. This is known as a Rule 12 motion in civil practice. And those motions are very common in that venue, and often granted. Such a motion should permit the Panel to say, look, even if everything the Director says is true (for example, the letter was sent), they do not articulate a violation of the ethical canons. (This may be caused by another problem that I’ll discuss below.) But another purpose of a Rule 12 motion (particularly under Minnesota law) is to put the defendant on notice of the type of claim being alleged. The Canons themselves are so vague, the case law in this area that could teach the Director what it must prove is so sparse, that the lawyer often does not understand, even after the PC hearing, what is being charged.
In my case, I was charged with mixing up two pages in a document. At the bottom, the Director alleged “deceit” in violation of Rule 3.4 At no time did the Director explain how it got from mixing up pages (which sounds like a mistake) to deceit, which is intentional. Private people have to allege facts to permit the finder of fact to find intent – why should the Director not be held to that same standard? Further, since misconduct is almost always intentional, why would the Panel not be required to find evidence of intent, before sending the lawyer to a public trial? The vagueness of the rules, combined with the unfairness of the process, means that nearly every lawyer who is targeted will go down. And that is probably why so many lawyers admit and settle. And that is how we get on the circular gerbil wheel that keeps ending us up in the same place over and over again. This is similar to the criminal justice system, in which most criminal defendants fear (for many good reasons, too numerous to mention here) that they will be convicted if they assert their rights, and agree to plead guilty. Before I became involved in these systems, I assumed that people would not plead guilty if they were not guilty. I have rejected that thought, and now believe that significant numbers of people plead guilty for all the wrong reasons. That is, the reasons are wrong, if what we are about in these systems is protecting the public.
I have often said that if you are guilty, the criminal justice system (or, for purposes of this post, the lawyer disciplinary process) is a great place. If you are guilty, you get a plea agreement, two for the price of one crimes. You are in fact rewarded for criminal activity by getting a lighter sentence when you admit. But if you are innocent, the system is a harsh place where many feel little ability to defend themselves, and begin wondering if they can trust anyone involved with the process. On top of that, we, the public, are paying to put innocent people in prison, money that could be spent in much more productive ways. I have often perceived that district court judges prefer cases to settle rather than going to trial because there are not sufficient trial judges to try every case. If the system stopped sending innocent people to prison, and that money were re-routed to pay for additional judges, then we would have enough money to try every case.
And once prosecutors realized that every case could be tried, they would likely begin to self-select only the cases where the evidence warrants a trial. In the current system, prosecutors have so much bargaining power that cases not worth any public resources at all, are pushed into the system. In the current state of affairs, prosecutors are likely to achieve some kind of settlement on most of those cases. And that begets more such cases.
Many years ago I dubbed this a problem with the “intake valve.” No case ends up in the courts without first coming through an intake portal. For a person filing a civil case (and leaving electronic filing out of it for the moment), we are expected to take a check for filing fees, and the complaint, to the counter in the courthouse, where it is received (or not received, depending, but that’s another story). That court acceptance of the civil case commences the process, such as the assignment of a judge, who then creates a scheduling order, and often, a motion to test whether the complaint should be in the court at all (see the discussion above of Rule 12 motions). In criminal cases, there are a number of ways that the case can become a court case.
For example, police are permitted to “charge” Minnesotans, by arresting them, taking them to jail, and filling out something called an “authority to detain” document. The jail staff then types from that document into the court computers. And the Minnesotan is given a court date upon release from jail. This is an improper function for police.
The point of asking a prosecutor to make the decision, was originally intended to force a second look at the case, a second investigation, to weed out cases where the complainant is vindictive, or where the evidence isn’t sufficient to charge. Instead, these “tab” charges permit police, literally, to arrest someone when that very police officer is the complainant. My clients have experienced these types of tab charges in cases where they are objecting to the way police are treating them (anything from verbal abuse to physical abuse), and the officer decides to arrest them and charge them.
Most jurors, once the case comes to trial, are now able to see the problem with permitting someone with a stake in the game to make the charging decision. But these “tab” charges are, every day in Minnesota, coming up in the court computers, while long lines of Minnesotans wait for the prosecutor, already in the courtroom, takes a first look at the case. In addition to the potential for charges with ill motive (such as a police officer who wants to protect himself from civil liability by charging the citizen), by putting the case into the court computers, elected county attorneys likely feel they need to report to the public about how many of those cases are dismissed. This incentivizes line prosecutors to get some type of guilty plea (even a plea that the person is innocent but wants to get the case over with), so almost every case. And that weighs significantly against a search for the truth, and justice.
I had a case that could illustrate this problem. I represented a man who was already suing some police officers, and he was scheduled for trial in federal court. Just prior to trial, those same police officers were involved in his arrest. Acting quickly, I was able to obtain some video footage and some audio footage from police. Those did not match the police report that had been used to support the “tab” charges. I went to the first court appearance armed with the audiotape, and a chart showing the discrepancies between the report and the audio. I was told by the prosecutor staffing that particular calendar, that he did not have authority to consider dismissing the charges. He refused to listen to the audio or look at the chart. Although those are busy calendars, and sometimes that contributes to the prosecutor’s inability to parse evidence, in this case, that was not true.
I spent literally hours in that room, until finally, by the end of the morning, the Prosecutor and I were just about the only people in the room. He sat on one side and I on the other, all the while not listening to an audiotape that was about five minutes in length. I could not leave that room without drawing the following conclusions. First, that the evidence did not matter, once the case had been charged. And second, that that public law firm did not give prosecutors discretion to dismiss certain types of cases at that first appearance.
This, and many other encounters with public law firms, led me over time to believe that prosecutor decisions are now being made by supervising attorneys (who could not possibly know the facts of the case like the line prosecutor, and certainly do not get to know the defendant) or by policy.
This is disturbing on many levels. First, these “calendars,” and policies, and supervisory decisions have stripped all the humanness out of the criminal justice system. It used to be about prosecutors and judges getting to know the defendant as a human being. The technicality of the law is important, but only in the context of viewing the whole human being. If the criminal defendant sees a different prosecutor and a different judge every time he comes to court, no one will ever get to know him. And this aspect of the criminal justice system is lost.
Second, by over-scripting each individual prosecutor with policies, the discretion to do right, evaporates from the system. Discretion should be exercised in light of the particular situation, which includes the specific facts of a case, the quality of the evidence, the justice-system policy at issue (prevention, deterrence, rehabilitation or retribution), and the people involved in the case. Policies essentially prevent prosecutors from doing what they each think is the right thing in the situation. With that removed, the criminal justice system resembles a factory, with each case a widget, the “process” an assembly line, and the “product” a conviction.
Like most factories, it is a numbers game, and about dollars. The cost of the making the product is judged against the production. And careers rise and fall based on quantity rather than quality. County attorneys treat is as a number game, regularly campaigning based on the percentage increase in gun charges (for example), or the percentage of convictions across all cases filed. Is it any wonder people involuntarily caught up in that system feel dehumanized while in it, and like a statistic as they leave it.
And once in prison, a new set of numbers begins. I have never understood why the State of Minnesota (which currently pays judge salaries, as well for prison terms) would work so hard to prevent a two-day trial or evidentiary hearing, when a 60-year prison term is at issue. This has to be about budgets, and in particular, the way the State splits the budget. In other words, what sense does it make for a judge to feel pressured to save the State money on trials (that is, save the court line item budget money), if the State is going to spend money to house that person for 60 or so years in prison?
If the issue is saving money, shouldn’t the cost to the public be considered without regard to the budget it comes from? This scenario is even worse when we stop to consider that the person might be totally innocent (and pressured to plead guilty), or that even if guilty, he is not guilty of the crime that would net him 60 years in prison.
Would if we flipped the Department of Corrections budget and the courts budget? What if, instead of asking the public to pay for time spent in prison cells, that money was used to increase training for judges, used to reform the court system to require real consideration of motions to dismiss criminal cases, used to modify statutes across the entire criminal justice system to prevent innocent people from getting suck up into the system in the first place, and reduce the possibility that the innocent people will go to prison.
My experience in the lawyer disciplinary process has been much like what I’ve viewed in the criminal system. Once a case is on the books, it seems prosecutors just will not dismiss it. Or their supervisors wont’ let them dismiss it. Whatever the reason, the extreme reluctance of prosecutors to dismiss any of the charges costs the system money, costs human beings time and resources, not to mention stress and humiliation, and means that money can’t be spent on more productive things. This stands in sharp contrast to civil cases, in which civil prosecutors are nearly expected to evaluate the relative strength and weakness of their claims, and to dismiss some of their claims before trial to narrow the issues and streamline the trial. In fact, civil attorneys can be sanctions under Rule 11 if they persist in going forward with a claim that lacks merit.
In addition to creating problems for innocent criminal defendants, such a system can also be misused to cause criminal defense attorneys to expend time and resources on charges that should never have been in the court system in the first place.
In lawyer disciplinary cases, a special rule was created for lawyers who were perceived as “litigious.”
Rule 9(g) permits the Panel Chair, in some type of undisclosed ex parte communication with the Board Chair, to “certify” the case to the Supreme Court, seeking the appointment of a district judge to serve in place of a Panel. This was done in my case. I have no idea what Robert Bauer (Panel Chair) and Judith Rush (Board Chair) talked about before deciding to jointly sign a document seeking 9(g) certification.
Members of these quasi-judicial tribunals often seem to be absolutely immune, comparing what they do to judges, who have absolute immunity from suit. But it’s just too easy for someone to call a member one of these panels (or perhaps call someone not on the panel but on that same board) to put pressure on them as to how they should rule. The reason we prohibit such communications for judges, it to protect the purity of the decision-making process. If quasi-judicial tribunals want to be absolutely immune, they should be required to follow the rules of conduct for judges. Or, if they decline to agree to follow those ethics rules, they should be advised that they are waiving immunity.
Although the Rule uses the words “extraordinary” and “exception,” it’s not clear what this means. To me as a litigator, it seemed the Rule was providing a way for the Board to protect itself, protect its Panel members (there is no case of which I am aware that has held Panel members are absolutely immune from liability), and seek a ruling by a district judge who has absolute immunity.
The word “complexity” in the rule was troubling to me, because it could be used to indicate application of constitutional principles. Although constitutional law is one of the most conceptual areas of the law, it is not rocket science. And it can (and should) be taught to Panel members. Each and every lawyer, in each and every PC hearing, should be able to raise constitutional challenges to the charging instrument, and to the conduct of the Director and the Board.
As it was, 9(g) certification did not assure me that my constitutional rights would be considered. There seemed little benefit to having the PC hearing. It increased the amount of work, forced me to testify against myself, and to put the Assistant Director on notice of my arguments and theories of the defense, so that he could be better prepared for the real trial. None of those are permitted in the criminal justice system, and should not be permitted in lawyer disciplinary proceedings.
Spending time between Christmas and New Years when I could have been with family was even the more disappointing, since there was no definition of “probable cause” for the experienced district judge to apply. Imagine how many lawyers have gone through this system, how many have been publicly charged, without the term “probable cause” being defined. Who could prepare for such a hearing?
Further, in my case, the hearing was truly a waste, because the Director charged me publicly, even though the district judge/referee had not found probable cause.
The way in which the Director reacted when that Office received the Referee’s order, exemplifies the real reason for the “review.” It is to protect the prosecutors, to shield them from political fallout or civil liability, if they charge a litigator who is able (through status, use of resources, or sheer perseverance) to come back after them at the end of the game.
The Prosecutors, in my case, barreled forward with public charges (alerting the Board Chair as soon as they were served), apparently too flushed with excitement to read the order. This would cause any red-blooded defense attorney to wonder just what is going on in that Office, and to request a full review of my case, from top to bottom.
Even though I have made a study of it, it is difficult for me to understand the “confidentiality” of the PC hearing process. The Director, as discussed below, wants to interpret the Rules to provide for complete public disclosure of everything that Office has about the lawyer, as soon as any probable cause has been found. Rule 9(g) provides that
If a referee appointed under Rule 14 considers all of the evidence presented at the probable cause hearing, a transcript of that hearing shall be made part of the public record.
This begs the question of confidentiality. What is the purpose of telling the lawyer the PC hearing is confidential, if the transcript of it is not? The sentence quoted above does not demand a finding of probable cause, but uses a different standard, whether all evidence was considered.
This raises several issues. How does the justice system determine whether all of the evidence has been considered? This quandary arises in many areas of the law, and in appeals. The word “consider” could mean discussed in the order. That is an appropriate standard, since it really requires the judicial officer to take a look at, parse through, and discuss the evidence in writing. It is difficult to author something without first going over it and then weighing it. I am not speaking of copying from some other work, but authoring in the first instance. But this raises the question of who in the justice system is considering the evidence, who is authoring the order.
I started to practice law in 1988. I cannot recall a time when law clerks did not write the opinions, although I have to confess that in my first few years of practice I was too busy panicking about being a lawyer to pay much attention to these facts or questions. In the last 5 years or so, I have been shocked, at times, to note the level of responsibility given to fairly young law clerks, who come to the job with little or no experience practicing law.
As I began to try more cases, I experienced the real job of working with experienced trial judges, who clearly learned over time, through doing, and who were therefore adept at meeting any new challenge the trial might serve up. The more experienced the trial judge (in general), the more the trial was able to run smoothly, and the oddball issues that arise in every trial were dealt with quickly and confidently. I was disappointed to see many of our best experienced trial judges retiring, as they took with them a wealth of institutional knowledge.
By contrast, young lawyers serving as law clerks, although many of them likely intelligent, and well-meaning, simply lack the experience and depth of knowledge across all of the areas of the law, to author meaningful opinions. It is impossible for someone like me to know just how much responsibility these clerks are given. But in the confusing world of stare decisis, when appellate panels seem to come to different decisions based on fairly similar facts, one wonders whether it is the panels who are making those decisions, or whether in addition to the numerous appellate judges, we should be calculating the numerous law clerks into the matrix. In a system that professes to tell us who the decision maker is (there is a fairly complex wealth of recusal law, based on the parties knowing who is making the decision), it is curious that law clerks seems to come and go without us even knowing they have been there, yet leaving their mark on the orders that will decide the case.
Likely this comes in many shapes and sizes. Surely there are judges who are “hands on,” who make the decision themselves, using law clerks for research, and the more time-consuming tasks that form building blocks for the conclusion. But surely there are others, who shift the workload their clerk, looking at the clerk’s final product, editing it a bit, and signing it. And everything in between. If the law clerk (alone) considered the evidence, did the judge consider it? I think not. Although it’s likely possible to find out, I don’t know what law clerks make. But as public employees, they surely enjoy good benefits, and a secure position. In a system starved for judges, who is so much in salary paid to law clerks, instead of creating additional judgeships?
And that raises the larger question – who gets to decide? If the judiciary is to be a separate branch of government, why would anyone other than that branch decide how to staff itself? In nearly every area of work, society agrees that those with the most knowledge and experience should make the decisions. What is the point of letting the Legislature, or the Governor, decide how to distribute work among personnel in the courts? I have not heard of anything that would suggest they have superior knowledge or experience to assist them in that endeavor. And the risk is that the Legislature will stifle the judiciary in this way as a form of inhibiting their power. Or, worse, that an social agenda will play through the Legislature (perhaps legislators themselves not being aware of it), to limit the number of judges so that only special people can get justice.
In my experience, the “status” of the party has made a lot of different in how they are treated in the courts. Treated as in face-to-face interactions, but also treated as in the way in which the case is decided. Although it is not across the board, there have been enough situations in which my clients (almost always the little guy, with neither wealth nor political status) have felt that behind the scenes, someone with higher status was getting the real attention. This is not justice for all. It is not equal justice under law. It doesn’t even come close.
To the extent this has been a grand experiment in social control, it has failed. The “get tough on crime” era of the late 80’s and 1990’s, did not reduce the amount of crime in America. And, most importantly, it did not make Americans feel safer. What it did so was place a disproportionate number of African Americans and other minorities in prison, removing them from their families, their jobs, their communities. Through stare decisis, we are still strapped with decisions from that era that begat obtuse outcomes, such as the notion that a passenger in a car has no standing to enforce their Fourth Amendment rights because they are not the owner. Nowhere does the US Constitution suggest that one must be an owner to be able to prevent misuse of police authority (which is really what the Fourth Amendment is about). And, not even the US Supreme Court thinks that ownership is necessary for standing to enforce Fourth Amendment rights. Somehow, that rule of law was created, and it continues to be cited today, each new case citing a prior case for that (erroneous) proposition.
We also labor under appellate review policies, that create decisions based on desired statistical outcomes, rather than based on what the law. Although I have never been able to substantiate the precise policies, I have certainly heard that a rule of thumb is to reverse only 10% of the district court decisions. There was a rumor going around that in family law cases, only 2% should be reversed. This is a curious phenomenon to me, and I am not sure what it is intended to achieve.
On the one hand, I bristle at the notion that we would make decisions in cases based on anything other than the law. Once we leave that rudder, the ship goes quickly off course. But just as disturbing, is the question of what function appellate courts play, if it is not to correct district judges’ application of the law? And if I have heard 10%, you can be sure that district judges, who are much more plugged in to back room of the justice system than I am, have heard 10% and 2% reversal rates. Why, then would they be concerned about getting it right the first time, if they can pretty well assume they will not be reversed on appeal?
But there is even a larger structural question, about the role of appellate courts. We can’t seem to agree on what that function is. And if that’s still a mystery, then the details of how that function plays out will surely be confused. For example, one appellate panel may state, if you want change, you have to go to the legislature. While another panel will break with tradition and create a new doctrine. District judges state frequently (whether directly or indirectly) that any request by a litigant for modification or expansion of the law needs to be ruled on by the appellate court. But the panel that gets that case might decide it lacks authority to do so. Or, more likely, will not even consider modifying or expansion, but will merely (based on the 10% policy) affirm the district court assuming that if the case had something important about it requiring a change in the law, that the district judge would have handled that. District judges pass the buck up, and appellate judges pass the buck down, or at times, up to a higher court where review is not guaranteed.
This leaves litigants (who have spent years of their time, and often a lot of their own money) scratching their heads, wondering what we were all doing here.
Our business tends to de-value commentary from non-lawyers. But a layperson commented to me, when she learned of the 10% policy, “why don’t they just apply the law?” As an experienced lawyer, I ask the same question. Why not?
Of course, when I say apply the law, I do not mean the pure law (like, what is the proper standard of review). I mean apply the law to the facts. If district or appellate judges are permitted to ignore the factual record, the decision is meaningless window-dressing. Although it’s important to make a decision, a decision that is made in a vacuum (how the court would like it to come out) is not the job of judges. Each judge, for him or herself, needs to decide how the law applies to the specific case, complete with all of its facts.
I’ve read many an appellate opinion that sounds good (the facts are carefully selected to support the thesis), but when placed up against the actual factual record, falls significantly short. People don’t trust their lives, their businesses, their liberty to the courts for judges to take the easy way out, to dodge the tough ones, to pick and choose which parts of the case they are going to deal with. The dehumanization and objectification of litigants over the last two decades has not helped. It’s easy to rule against someone when you do not consider the human beings who will be affected. And although a transcript can be helpful when reviewing a case, deciding cases on appeal based solely on paper can lead to strange results.
This is partly because much of what occurs at a trial, for example, does not happen “one the record.” Or if it does, what was really said might be missing from the transcript reviewed on appeal. And even when it does happen on the “record,” the appeals court misses the tone of voice, the body language, the energy in the room when it does. In the past, the justice system dealt with this problem by deciding that the jury or the district judge rules on credibility, and that finding is seldom disturbed on appeal. But experienced district judges quickly learn that to “appeal-proof” their orders, they merely need to include the magic words “was not credible.” Since most legal issues, and indeed, entire cases, turn on “credibility” (that is pretty much what is left for trial), what function does an appeal serve?
With current technology, doesn’t it make more sense to videotape the trial, than to boil it down to a paper transcript? As I understand it, in the Hennepin County Courthouse, video is fed, anyway, into a central control room. The technology is already there. And with rolling video carts available for video appearances in criminal cases, why not make them available for trials? The work for appellate judges would likely be more interesting than simply reading paper. And the litigants would likely feel that more of their case was presented for appellate review.
Not only are we not making use of technology in this way, court rules have prohibited members of the public from creating their own audio and video of court proceedings, whether for their own archives (cases are important to the parties), or so they can audit the paper transcript when it is prepared. I have never understood such rules. The only reasons I can think of for creating and enforcing them, is to prevent members of the public from auditing their own transcripts (which means, essentially, those who change transcripts won’t be able to do it any more), or to prevent the public from seeing a judge on the nightly news when he loses it and says swear words from the bench. Neither of these are good reasons. Although Rule 4 of the RARJB suggest that there could be attorney-client privileged communications inadvertently caught on those tapes, that is not much different from what people already overhear when they are sitting in the courtroom. And, aware that tapes are rolling, it would be the responsibility of each lawyer and client to police themselves on that score. Surely they would rather take on that responsibility, then have even a chance that important evidence elicited at trial might not make it to the appellate court.
Of course, in certain courthouse, much of the criminal case is conducted in chambers. There are times when chambers talks “off the record” are appropriate. For example, I tried a case with a brand new attorney (no prior trial experience). The trial judge was kind enough to educate him in chambers, rather than humiliating him in open court. That is one thing. But conducting the business of the case away from the criminal defendant and his family (who have paid to come to court, to park, and are interested in the case), and in a way that literally prevents the appellate court from knowing what really occurred, needs to be stopped. Courtrooms are not stages, where actors with staged lines appear for brief moments, take a bow and leave. The courtroom should be the focal point of the criminal case. That is why the defendant is entitled to be present in court for the important parts of the case. Decisions made outside the presence of the defendant, about his own case, should be reversible error. And the burden should be on the system insiders to prove there were no off-the-record conversations, not the other way around.
Although finality is important, if glaring new evidence emerges while the case was on appeal which would completely change its outcome, what is the point forcing an appeal to its conclusion based on an outdated record?
Other protections we have taken years to forge in the criminal justice system are no-brainers for lawyer quasi-criminal cases. For example, although criminal defendants may testify at a Rasmussen hearing, they cannot be subpoena’d to appear. And if they decide to testify, except under limited exceptions, that testimony cannot be used against them in the trial. Lawyers are required by Rule 9(h) to testify at the PC hearing, often against themselves. Indeed, the Director’s main witness is the lawyer, and most of the director’s exhibits were supplied by the lawyer as well, under penalty of a “non-cooperation” charge if the lawyer does not promptly supply information. Why would a lawyer whose entire career, license, and business are at stake, be entitled to fewer protections than a Minnesotan charged with disorderly conduct?
This is even more devastating when one considers that the Director can, and does, ask questions that could result in criminal liability for the lawyer. Under the current Rules, lawyers are not protected from this. My anecdotal research into the issue shows that it is not uncommon for the Director to provide the file to criminal prosecutors, and that Office has been systematically, for years, supplying Supreme Court orders suspending or disbarring a lawyer, to criminal prosecutors. Judges, or panel members acting as the Tribunal, should be required to warn lawyers of criminal consequences of a compelled answer, and lawyers should be entitled to elect to remain silent, without that very silence being held against them in the form of an “adverse inference.”
The Director should be ordered to destroy all information and documents obtained through compulsion, and the LB and the OLPR should all receive training in Fifth Amendment rights.
The Court should either elect to create a new doctrine, or should exercise its supervisory powers, to remedy past wrongs to the lawyer population as a result of the LB/OLPR failure to protect Fifth Amendment rights, including review of prior cases, and, most importantly, habeas corpus for lawyers whose liberty has been improperly restrained.
Because of the disproportionate number of solo practitioners and small firm lawyers prosecuted by the OLPR, and because for those attorneys in particular, the loss of their license meant the loss of their entire business, a fund should be created to remedy the past wrongs, and a special master appointed to determine the damages and distribute the funds.
The Court should launch an investigation of the Lawyers Board and the Office of Lawyers Professional Responsibility, and all organizations that have contributed to the issues discussed in this post (such as the Minnesota State Bar Association) to ferret out the areas of most concern, to review procedures, rules, practices, policies and customs, and to implement change from the macro (structural changes, such as collapsing the Lawyers Board and the Board of Judicial Standards into one organization, and utilizing the under-utilized prosecutor resource to prosecute judges), to the micro (such as procedures for reviewing files). Because these individuals serve at the pleasure of the Court, this is an appropriate place to experiment with new structures and rules, to determine whether these changes should be implemented on a more systemic basis within the courts.
Minnesotans are calling for reform of the courts, and the Minnesota Constitution permits them to do so. The Court will be unable to effectuate the reform if it does not have sufficient control over its own employees, and over its own budget. Since around 1989, the judicial branch has been treated, in terms of the budget, like a small department of the State. Statutes passed in that era, and after that, have stripped the court of its inherent authority to govern itself as a court, and violated separation of powers principle on which this democracy is built. The Legislature has out-stepped its boundaries, purporting to change what only the People can change.
For example, Minnesota Statute §480.013 purported to change the title of judges, in Article VI section 1 of the Minnesota Constitution, from Supreme Court “judge” to Supreme Court “justice.” It does not take a rocket scientist to determine that the Legislature lacked the authority to change the Constitution. As any Quie Commission member will tell you, the Legislature must first pass a bill in both houses proposing the constitutional change, then put the proposed amendment to the People of Minnesota to vote up or down. In the 2012 election, both proposed constitutional amendments were voted down.
And I will not hear argument that the Legislature just changed a few words. Because in a few words lies the whole world of law. A few words mean the difference between losing or retaining a business, between going free and going to prison, between retaining power and losing a seat. The devil is in the details, and that tiny change, from “judge” to “justice” began the construction of a house of cards, all built on those tiny words.
Because the Legislature lacked authority to change “judge” to “justice,” the statute is void, as if it were never enacted. And, the Legislature should have thought of that, because many of the other statutes with which the Legislature attempted to control the courts, have been built upon that word, “justice.”
For example, Article VI, section 1 of the Minnesota Constitution created up to 9 supreme court judgeships, and for years, Minnesota had 9 Supreme Court Judges. In 1982 and 1986, the Minnesota Legislature purported to change the number of judges with the following language:
480.011 OFFICE OF ASSOCIATE JUSTICE; CONTINUANCE IN OFFICE.
The reduction of two offices of associate justice abolished by section 480.01 shall become effective upon the first two vacancies occurring in that office on the Supreme Court. Each justice of the Supreme Court serving on August 1, 1983 may continue to serve until the justice is not elected or does not seek reelection. If a justice who was serving on August 1, 1983, is defeated for reelection by another person, that other person shall be deemed to have been in office as of August 1, 1983, for the purposes of this section.
This statute is fraught with problems. It obviously attempted to reduce the number of supreme court judges by two. But it did more than that. Rather than following the Minnesota Constitution with regard to the election of judges, it substituted alternate language, claiming that a “person” who defeats a sitting judge will be deemed to have held the office since 1983. This violated the First Amendment right to run for office.
But it also violated the rights of the voters, to vote for their candidate of choice in order to defeat a sitting justice. This violated the Thirteenth, Fourteenth, and Fifteenth Amendment to the US Constitution, which guarantee not only that African Americans may vote for their candidate of choice (and under modern jurisprudence, that we all have that right), but also that the minority vote will not be diluted so as to lessen its influence. (See more on this below.)
In essence, the statute penalized the voters and the candidate, by deciding that a successful election would result in that being the first seat to go. I was not around when this was enacted, but it sounds like that was the goal all along: to ensure that the incentive to run for supreme court judge was stymied, by the pragmatic reality that even if you win, you lose. Two seats on the state’s highest court, the policy-making court were lost in this endeavor. The statute is void from its inception, and the two seats needs to be restored.
Since the Legislature lacked authority to change the term from “judge” to “justice,” the reduction of 2 justices is moot. (They did not exist, so therefore abolishing the meaningless.) But for reasons that are unclear, people in the court system took action based on the statute. There are, surely, two fewer chairs at the bench in the Supreme Court chambers. And when the terms of certain judges ended, Minnesotans were not asked to vote in any more. This should be quickly remedied by the Secretary of State, holding a special election for two more supreme court judges.
See also Minn. Stat. §480.01, which was amended to provide for one chief justice and six associate justices. The amendment to that statute is also void, for similar reasons, and because it is not necessary to tell the Supreme Court that is exists. The Court was created by the Constitution, not the Legislature. Only the People can abolish it, or change it. And statutes that purport to control the courts by in essence changing the Constitution, are all void from their inception.
Minnesota Statute §204B.36, Subd. 5 provides as follows:
Designation of incumbent; judicial offices. If a chief justice, associate justice, or judge is a candidate to succeed again, the word ‘incumbent’ shall be printed after that judge’s name as a candidate.
(Emphasis added). I challenged the use of the word “incumbent” based on my interpretation of “succeed again,” and I still like that argument (although it failed in Clark v. Pawlenty, now known as “Clark I”). Based on what I heard, that Opinion should be vacated for fraud on the court. Not only was Clark I used to gain an advantage under the Rooker-Feldman doctrine in 2010 federal court proceedings (Robins v. Ritchie), but the substitute panel serving in place of the Minnesota Supreme Court defrauded that court, by claiming it had made a decision that applied the law to the facts.
Based on the discussion above, however, even without using my interpretation of “succeed again,” the statute cannot be interpreted to require “incumbent” by the name of a “justice” running for office – because there are no “justices” positions created by the Constitution.
The Secretary of State has, in the past, used the words “Chief Justice” and “Associate Justice” on the ballot. Because that position does not exist, the person purporting to hold such position cannot be a ‘candidate’ to “succeed again” in that position. Further, note how the final phrase of the statute uses the term “judge.” By it’s plain language, it does not apply to the position the Legislature created, “justice.”
Further, the term “candidate” does not apply to those vying for judicial officer. See Minn. Stat. §211A.01, Subd. 3 (which defines “candidate”). Therefore, when the office is for justice or judge, there is no “candidate” name after which to print the word “incumbent.”
Finally, consider Minn. Stat. §480.17, which requires “judges and court administrators” to comply with “all requests made by the court administrator after approval of the chief justice….” This statute will be further discussed below, but for purposes of this point, if there are no (authorized) “justice” seats, there is no “chief justice” seat and therefore this approval was never granted under authority.
These statutes were not well thought through, even though the Legislature has a large staff, complete with numerous lawyers. I have never heard anyone mention that the Legislature did not have enough money to fund itself (that is that the Legislature had to scrimp and save on staff). Yet even with all that staff, statutes that attempted to control the courts (or worse yet, who sat on the courts), were mostly doomed from the outset, because simply constitutional precepts were not respected.
I discuss a number of these statutes below:
Minnesota Statute §480.054 requires the Supreme Court to promulgate proposed rules (created by the committee, the composition of which the Legislature has attempted to control, see Minn. Stat. §480.052, discussed above). If a member of the public requests a hearing, the Supreme Court may grant one. But if a Court of Appeals Judge asks for one, it is mandatory. This is just one of many statutes which decreased the voice of the public, and increased the voice and therefore power of government insiders. See also Minn. Stat. §480.0591 and Minn. Stat. §480.059.
It’s not enough that the Legislature has worked to control the process for rule amendments. In Minn. Stat. §480.058, Subd. 1, the Legislature has purportedly kept, for itself, the right to modify and repeal court rules. This is an obvious separation of powers problem. The courts understand best what is necessary for ensuring due process and protecting other constitutional rights. They need no authority from the Legislature to create their own rules. And the Legislature lacks the authority to tell another branch of government to change those rules.
Ironically, in Minn. Stat. §480.051, the Legislature has told the Court that it has the power to regulate pleadings, practice, procedure and forms by rule. It’s not clear why the Legislature has seen fit to articulate that, when its other statutes attempt to remove that very power. Further, the Legislature itself articulated that, “Such rules shall not abridge, enlarge, or modify the substantive rights of any litigant.” Knowing how not to do this is the specific purview of the Courts, and a number of the statutes found in Chapter 480 violate the very “substantive” rights this statute purports to protect.
Several more statutes purport to give the Courts authority they already have, to create rules of evidence, rules of criminal procedure. See Minn. Stat. §480.059 and §480.05. Adding to the confusion, the Legislature enacted Minn. Stat. §480.059, Subd. 7, which provides that statutes relating to pleadings practice and procedure are effective only until they are superseded by court rule. Since the Court has always had authority to promulgate its own rules, this statute is superfluous and void. A few lines later, the Legislature has provided a list of statutes that are not trumped by court rule, adding further confusion. For example, the Legislature has tried to tell the courts how to protect the rights of the accused. Those are the individual rights that the courts are charged with protecting. It will only confuse the issue if in addition to the Constitutional text, plus case law, there are state statutes articulating the rights in different ways. If there is one thing we have learned in this past decade, we don’t need more complexity in the law, we need to simplify it wherever possible.
Minnesota Statute §480.05 undoubtedly recognizes the Supreme Court’s authority over its own system, as the supreme judicial tribunal of the state, over the bar of attorneys who appear before it, and over its rules and over its judgments. As noted above, that Court does not need a grant of authority from the Legislature. Article VI created the judiciary. The Legislature is a co-equal branch, created by Article IV. But the statute is illustrative, of inroads by the Legislature (whether intended or unintended) to limit the power of the bench. In particular, when describing the Court’s power to issue its own rules, this statute uses the phrase “agreeable to the usages and principles of law.” The statute gives no clue as to the meaning of this phrase, but the risk is that it could be read to limit the court’s power to that “law” created by the Legislature. That would place statutes above the constitution in the hierarchy of laws. This is the opposite of the way in which law was created by the People.
In the concept of “self governance,” the People cede their power and authority to government, for their collective good. The whole notion of “police powers” of government (from whence flows the term “police” and nearly all other statutory and regulatory schemes), was intended to protect and benefit the People.
The ceding of authority is like a contract between the People and the government. The constitution is the first document in which the People contract with government. And it is, by its primacy, the most important document. It is the core, guiding principle of the transfer of authority from the People, and it memorializes the agreement government made, when it accepted that authority. Although all parts of both constitutions are important, most People understand this concept best when it is illustrated by a discussion of civil rights.
Civil rights, also referred to as the “Bill of Rights” when discussing the federal constitution, are those guarantees government made, when it accepted the grant of authority from the People. For example, the “First Amendment,” guarantees that people may continue to speak, and in particular, to criticize the government they created, so that it can know where it went wrong, but also so it can do better in the future. Do better, that is, in us governing ourselves.
The “Bill of Rights” was specifically added to the US Constitution, because people got nervous that government might forget them once it had the power. Whenever the forgetting started, it appears now there has been a loss of memory by government as to the way in which it was created, and the guarantees it made to you and me, when authority was transferred.
I have heard from many judicial reformists over the past decade, and if there is one theme, this is it. It is not always articulated in this way; people without legal training are not always able to use our community’s language when expressing their frustrations. But it’s important for us not to tune people out, merely because they do not know the jargon. The themes are there, they have been there all along. I did not invent judicial reform. I came to it, prevailed upon by people who have no legal training, who nonetheless urged that the courts had gone astray and needed reform. Government, and those of us who translate the frustrations of the man in the street to government (that is, lawyers) should be mindful that our advanced training does not entitle us to a dominion over the legal industry, and it certainly does not give us control over legal thought. Sometimes the best idea for what to do in a case comes from the client. Sometimes the best ideas about how we can remedy and advance the justice system, come from non-lawyers.
That is why it is so desirable to include all types of people on committees created to review potential rule changes. We have tried it with all (or mostly) insiders on committees. And it has gotten us here. It’s time to try a change.
And I have said for some time (me as articulator of a lot of the ideas I have heard from other judicial reformists, in a language that I hope communicates to my community), we should start by going back to basics. (See other posts in the category “What is Judicial Reform?”)
It is axiomatic that the courts should design, promulgate and amend their own rules as necessary for the courts to operate as courts. The Legislature should not try to run the courts but should stick to enacting substantive statutes. Although there is always an area of gray in interpreting those lines, surely anything is better than the current miasma of statutes that conflict with themselves, uncertain direction for jurists, and in particular, the diminution of power for the watchdog branch of government.
Courts also need to be able to control their own information and data, and to protect it as they see fit. I was particularly disturbed by the 2011 “Report to the Community,” which boasted about how court computers now link to law enforcement computers, and pass digital information quickly. To me, that is an admission that the court is not protecting data about individuals who appear before the courts. It appears someone has literally invited the executive branch into the court computers. As a licensed attorney and officer of the court, there is significant data that is not available to me from the court computer. For example, I cannot see court orders from my office, nor can I view some court dockets. Since documents are being e-filed, and it is obvious court staff can see them, I wonder why private attorneys are required to go downtown to review the file. This is particularly troubling, because it appears executive agencies are able to access court data.
And, the list of data accessible to executive agencies includes data that is confidential, and should not be shared at all, let alone quickly.
I am equally concerned about the use of the term “justice partner,” a term that appears in the 2011 Report to the Community. In light of the data being shared with “justice partners,” I take that term to mean executive branch personnel who play some role in the criminal justice system. But those personnel play a different role from the one the courts play. Courts are required to protect the constitutional rights of criminal defendants. A review is in order to determine which of the data being shared should be being treated as confidential, and never shared, and therefore all linkages to computers other than court computers, disconnected. A study should follow to audit selected portions of data, which has been the subject of such linkages, comparing it to original paper data, to determine the need for a full-scale audit.
When I started looking into this, I was quite shocked to find Minn. Stat. §480.23, which requires the courts to obtain approval from the State before purchasing its own computer software or hardware, and that approval, the statute says, shall be given by the Court Administrator (elevating that position above the Supreme Court, which the Legislature acknowledges is supreme), purports to need to demonstrate compatibility with the Bureau of Criminal Affairs computer systems.
Minnesota Statute §480.17 is also alarming. That statute requires judges to comply with requests for data by the court administrator (likely so the court administrator can comply with the statute which requires a report to the Legislature about the business of the courts) under penalty of being removed from office! (State and local public officials, take note, because you are also subject to removal from office if you do not comply.) This is an obvious affront to the Constitution, and it’s difficult to imagine how this has remained on the books.
I am further incensed, because as a citizen, I have been requesting public data from the courts for literally years, so that I could better represent my clients. When I began doing that, the Rules of Public Access to Records of the Judicial Branch (RARJB) required court administrators to respond to requests, with an appeal to the State Court Administrator if the request was denied. When I began requesting data, the RARJB was changed, to remove the court administrators from the process, and requiring that requests be made to judges, with the only remedy a lengthy and costly appeal. It’s certainly curious that the Court Administrator had the apparent authority all along to require judges to provide information to her Office, so that she could produce it to me. This was not what I was told at the time, and my efforts only resulted in a change in the process which has further stymied my efforts.
Why would the Court Administrator, or the State, have superior right to public data, over me and my clients? In this system of self-governance, I need public data to intelligently consider the issues and make suggestions for improvement. That is my right. The natural human tendency of government officials to hold data close to their vests in order to protect themselves, must be overcome. For data from the Executive Branch, there now exists a streamlined, fairly rapid process in the Office of Administrative Hearings. This acknowledges the frustration of the populace over attempts to obtain data from government, with the only remedy a lengthy district and then appellate court battle. It has not worked for me, to request court data from those in charge of it, and who might be compromised by its disclosure. I see no reason why requests for court data could not be obtained through the OAH process. Those Administrative Law Judges are asked, every day, to interpret a new set of rules and regulations. They could easily interpret the RARJB, to help citizens obtain information about their government.
I held a position, before I went to law school, where I was obliged by committee mandate, to keep track of everything I did down to the minute. This included making a few photocopies, traveling to the restroom. You will not be surprised that as professionals, we were a bit incensed by the micro-management, and we launched our own study of the time it took to record all of our time, and we began keeping track of that. You can likely guess where this is going, the micro-management cost our agency resources, which we were never able to recover. I would like to see a study of how much time from judges and court staff, is spent providing data to the Legislature so that it can study the use of judicial time. Not a full-scale study, because that would take too much time. But a tiny sliver of the pie, so that the public can understand what really is the drain on judicial resources. And the Judicial Branch should be refunded all monies it expended providing data to the State in the past.
Some of the statutes are unnecessary, because the Minnesota Constitution already controls. See, for example, Minn. Stat. §480A.02, which purports to set forth the process for appointing a judge if there is a vacancy during a term. Article VI, Section 8 controls that. The statute is void. Subdivision 3 of that statute codified a Minnesota Court of Appeals decision, which completely changed the structure of the Court of Appeals, and impaired minority voting rights.
The original structure had each court of appeals judge representing one each congressional district. This meant that each judge had to run for election only within that congressional district. When former Congressman Minge was appointed Judge of the Court of Appeals, but the moved outside his original congressional district, the Minnesota Court of Appeals issued an opinion in a case brought by the Wersal brothers, that Minge could keep his seat even though he had moved outside his district’s boundaries. The decision was not well received by judicial reformists. First, why would the Court of Appeals rule on one of its own members’ electoral fates? Whether it was or not, the decision, particularly since there did not seem to be any rhyme nor reason for it, seemed like it was a protection of Minge’s seat, rather than an interpretation of the law. Such decisions do not instill trust in the populace.
Second, the decision completely confused the electoral map, because if Minge did not need to come from the congressional district for the seat he had held, then why would any other member of that Court? The Legislature quickly responded, seeking to ensure that, “A judge who is elected or appointed to a congressional district seat shall continue to be eligible for that seat without regard to any subsequent change of residence.” And that, “All other seats shall be without restriction as to residence.” The next subsection of that statute provides, “All judges shall be subject to statewide election, whether they serve in at-large or congressional district seats.” This meant that every Court of Appeals seat was up for statewide election, rather than elections limited to the size of the congressional districts to which the seats had originally been tied.
And a statewide election is a particularly difficult election to win, particularly if there is a primary, since the Legislature has now set the primary elections so close to the filing period, that there is little time to campaign. But worse, the statewide elections diluted the minority vote from Minnesota’s Fifth Congressional District, making it unlikely that a minority candidate for judge (or rather someone vying for judicial office who Minnesotans of color wanted to vote for) could win a seat.
Over the years, federal courts have been willing to declare state election statutes unconstitutional, and to enjoin their enforcement, when they violate the Federal Constitution. The Fourteenth Amendment (sec. 2), which reads in part,
…when the right to vote at any election for … Judicial officers of a State … is denied … or in any way abridged, … the basis of representation therein shall be reduced.
Although there is little law interpreting this clause, in light of existing federal precedent, and in particular the prohibition against dilution of the minority vote, the chance of obtaining an injunction enjoining enforcement of this statement is good.
That same state statutes continues,
Subd. 5.Designation of judges.
After each reapportionment, the chief judge shall designate a judge for each of the new congressional districts. The chief judge shall first redesignate the incumbent judges serving for the old congressional districts.
This section no longer makes sense, since the “district” is really the entire state, for all of the judges. But the section is troubling, because reapportionment occurs when something is off, when the populace is not being effectively represented by the current boundaries of the districts. No benefit flows to those who vote for judge, following a reapportionment. Those running for judge still must campaign in the entire state, and any dilution of the minority vote is continued in spit of the reapportionment. Further, incumbent judges are to be “redesignated” first, based on where they originally served. Should the judgeships be split into congressional districts for the next election (which they should), the incumbent judges would benefit, because they would live in their district, and have history there, and therefore the best chance of winning there.
The remainder of that section puts the Chief Judge in the impossible position of deciding which judge to place in which reapportioned district. The task is neither judicial, nor appropriate for a judge on that court to fulfill.
We have learned from the last several elections, that Minnesotans find it difficult to research so many judges at one time. Statewide elections for the Supreme Court, the Court of Appeals, and district-wide elections for district judges, requires Minnesotans to research up to 25 judges to decide who to vote for. Two or so for the Supreme Court, up to four running for the Court of Appeals, and on top of that, all of the candidates for district judges. Whereas most judges used to run on the country level, they now run district-wide. Minnesotans have told me that they cannot find it difficult to research all of the judges in the district who are up for re-election, not to mention their challengers. Compare that to learning about one race for Congressman, and one for each house and senate districts. The Legislature has made it difficult for Minnesotans to involve themselves in the reform of their government through elections. And the statutes favor incumbents. Minnesota should return to its original districts, congressional districts for court of appeals and supreme court judges, and county districts for trial court judges.
Part 2 will pick up where this left off, in the middle of reviewing various state statutes that profess to conscript the judiciary, and then pick at Rule 9 of the Minnesota Rules of Professional Responsibility.