Category Archives: Solutions

What is judicial reform: Equal – Not equal

Liberty Bell with Philadelphia buildings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

Note 1, see Wiki, here

Minnesota JSB: Heading in the Right Direction

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

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

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

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

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

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

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

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

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

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

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

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

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

A day of Thanks

On this day of Thanksgiving, consider this timely quote:

What a huge debt this nation owes to its “troublemakers.” From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply … troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all non-violent protesters a fair amount of slack.

Garcia v. Bloomberg, 2012 U.S. Dist. LEXIS 79296 (S.D.N.Y. June 7, 2012) (scan in cloud here).

The Breyer Committee solution: the way judges make decisions is fair game

In my view, too many complaints about judges are dismissed without investigation because they are characterized as being about the merits of the decision – which can only be pursued on appeal.

I believe this is a real (but easilty remedied) problem with Minnesota’s Board on Judicial Standards – and the form letter it sends to complainants, telling them it will not investigate if the issue should have been appealed.

In September 2006, the Judicial Conduct and Disability Act Study Committee, appointed in 2004 by Chief Justice Rehnquist and known as the “Breyer Committee,” presented a report, known as the “Breyer Committee Report,” 239 F.R.D. 116 (Sept. 2006), to Chief Justice Roberts that evaluated implementation of the Judicial Conduct and Disability Act of 1980, 28 U.S.C.§§ 351-364. The Breyer Committee had been formed in response to criticism from the public and the Congress regarding the effectiveness of the Act’s implementation. The Executive Committee of the Judicial Conference directed the Judicial Conference Committee on Judicial Conduct and Disability to consider the recommendations made by the Breyer Committee and to report on their implementation to the Conference.

(JUDICIAL CONFERENCE OF THE UNITED STATES: Rules for Judicial-Conduct and Judicial-Disability Proceedings, p. 2, ln. 11).

The result was a new set of rules for complaining about federal judges.  (Rules for Judicial-Conduct and Judicial-Disability Proceedings here).

I think the most important aspect of the Breyer Committee report is its discussion of  what is about the ‘merits’ of a decision (and therefore can only be pursued on appeal), and what is proper content for a complaint about a federal judge.  After setting forth a number of examples of the ‘merits,’ the Rules now provide,

Conversely, an allegation — however unsupported — that a judge conspired with a prosecutor to make a particular ruling is not merits-related, even though it “relates” to a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring with the prosecutor andgoes beyond a challenge to the correctness — “the merits” — of the ruling itself. An allegationthat a judge ruled against the complainant because the complainant is a member of a particularracial or ethnic group, or because the judge dislikes the complainant personally, is also notmerits-related. Such an allegation attacks the propriety of arriving at rulings with an illicit or improper motive. Similarly, an allegation that a judge used an inappropriate term to refer to aclass of people is not merits-related even if the judge used it on the bench or in an opinion; thecorrectness of the judge’s rulings is not at stake. An allegation that a judge treated litigants orattorneys in a demonstrably egregious and hostile manner while on the bench is also notmerits-related.


(Id. at 11, ln. 21; emphasis added).  This is helpful.  It clarifies that the way in which the decision was arrived at – is fair game.  And, it emphasizes that even when it is unsupported, it is proper to complain that the judge conspired with someone else in making the decision.  This is a big step forward for Americans, and it makes sense.

First, even when a complainant truly believes (based on what they have observed) that the judge conspired with someone regarding the decision, the parties almost never have access to evidence that would prove that.  It’s not fair to hold the complainant to a standard that would require them to have phone records, emails, courthouse video, when those are nearly impossible for most people to get.

Second, the Breyer Committee studied the issue in response to public criticism that the federal courts were not doing enough to hold their judges accountable.  That Committee’s decision to specifically authorize complaint for that reason, even without supporting evience, in my view, gets to the heart of what the public wanted when it demanded the courts do more.

The Rules now clarify that it is only the “correctness” of the decision (the outcome itself) that is off limits – pursuable only on appeal.  (Id.).

I am suggesting the Minnesota Board of Judicial Standards adopt the Breyer Committee descriptions of merits versus the way in which a decision was arrived at, and that it implement them when it receives complaints.


Mindfulness in Judging

Dr. Pam Casey, and Judges Steve Leben and Kevin Burke have published a White paper, MINDING THE COURT, Enhancing the Decision-Making Process (available here).

The paper discusses cognitive heuristics, and implicit biases, encouraging judges to be mindful of how they are making decisions.  It is thoughtful and encouraging.  The paper is a must read for those who are watching for signs that the justice system is changing.

I love the following quote,

Several techniques can help judges to be more mindful and aware of the decision-making process so that they make better decisions. First, focus on the higher purpose of the proceeding—hearing and properly deciding a case with a real impact on someone, not just processing a court docket.

This is what the real people who appear in court expect; it’s good to see it in print.

You see, you believe, and you receive….

Solution #5: Advance Case Law Relating To Judicial Conduct

As part of the multi-pronged approached I’ve talked about in the past, for the public to be sure the government is responding appropriately to judicial misconduct, it’s important to see progress in cases litigated on the merits.  That is, within the cases themselves.

A couple of days ago, I posted about the resignation of a Georgia Chief Judge William F. Lee Jr. posted that Judge “Lee was under investigation by the state’s Judicial Qualifications Commission over allegations of judicial misconduct in an undisclosed case, according to filings with the Georgia Supreme Court on Thursday [April 25, 2012].” Governor Deal accepted Judge Lee’s resignation the same day.  (Story here).

Although Lee is indicating the resignation was all voluntary (story here), it appears to have been ‘inspired’ by the ethics probe, since a consent order was filed indicating the matter was resolved by Lee’s resignation.

As I’ve discussed in other posts, the ethics investigation of Judge Lee is a completely separate process from appealing the merits of a case.  In the ethics/discipinary process, the government can actually perform an investigation, can review documents, interview witnesses, etc  The judge’s due process rights must be considered, the judge can defend, and that sometimes results in a trial.  Or, judges can decide to ‘settle’ their cases and accept discipline (or in the case of Judge Lee, agree to resign).

Objecting to judicial misconduct within the case is a wholly different process. Within the case, the parties can also challenge judicial conduct through several mechanisms, one of which is to ask the judge to recuse.  If this request or motion is granted, this means the judge ceases to be the presiding judge in the case, and a different judge gets assigned.  This is also referred to at times as “disqualification” of the judge.

I’ll blog in the future about recusals, the process, and the problems.  Suffice it to say for this post that in my opinion, judges who have been the subjects of recusal motions have too often been hostile to the party’s request (rather than judicial and intellectual), and reviewing courts have too often supported the judge – over fairness to the parties.  Let’s see if this changes as the judicial reform movement sweeps the nation.

In Georgia, the City of Savannah challenged Judge Lee, and sought to have him disqualified from a civil case, based on allegations that he had improper outside conversations with a senior partner for the law firm representing a plaintiff in the suit.”  (Story here).  Judge Lee did not recuse himself.

This is a real practical problem, because if a judge really is doing wrong, that judge often wants to stay in “control” of the case – to protect himself.

The Georgia Supreme Court has accepted review of the disqualification issue.  The Supreme Court doesn’t “investigate” in this situation.  It is limited to the evidence already filed in the case (known as the “record”).  The Supreme Court will apply the law to the facts in the record.

Supreme Courts are also ‘policy’ courts.  The Georgia Supreme Court may have taken the case to grapple with the issue of judicial misconduct, and how it should be handled within a case.

This will be an interesting case to watch.  Although I don’t know about the evidence in this particular case, the mere fact that the Georgia Supreme Court accepted review of the issue is important.  This prong must be advanced to get at the nub of the problem of judicial misconduct in the case:  parties need to know that fairness in their case is taken seriously by the court system.  The all-too-often knee-jerk reaction by the courts to protect the reputation of judges needs to be examined.

Parties who choose to litigate the issue of the judge’s conduct within their case should know that they can also seek discipline of a judge in that state’s separate ethics system.  (This often this comes later.)   That type of complaint can also be important to deter judicial misconduct by that judge and other judges.  But the only way to affect the case itself, is to appeal the legal issue triggered by the judge’s conduct within the case.

Wersal v. Sexton Part 2: Why is Secret Better?

On March 27, 2012, the Eighth Circuit Court of Appeals issued a decision in Wersal v. Sexton.  The  2012 8th Circuit Opinion was one in a string of cases in which Greg Wersal and others challenged the Minnesota rules of judicial conduct that relate to campaigning for the office of judge.  The judicial canons apply to judges running for election or re-election, and for lawyers running in public campaigns to become judge.

One of the judicial canons that was challenged by Wersal (Canon 5(B)(1)(d) became Rule 4.1(A)(4) in Minnesota’s 2008 judicial code of conduct) prohibits sitting judges from publicly endorsing candidates for public office.

The majority opinion (in which 5 appellate judges joined) not only ruled that the State of Minnesota can regulate judges publicly endorsing candidates, the Opinion suggests there is an obligation to do so.

I can understand this on one level.  If you think about it, it would make it very hard for a lawyer-candidate to win a public election challenging a sitting judge, if the incumbent was endorsed by another sitting judge, or 10, or 100.  The outcome of the recent 8th Circuit Opinion is good for lawyer-challengers.

Other parts of the Opinion do not make sense to me.

First, although the Opinion finds that

“…Minnesota’s endorsement clause [of the judicial canons] pertains to endorsements of any candidate for public office, regardless of whether the elections are partisan or nonpartisan…”

(p. 28), I can’t find that the Opinion dealt directly with the issue of judges endorsing candidates for the public office of judge.

The Opinion states,

“When judges are speaking as judges, and trading on the prestige of their office to advance other political ends, a state has an obligation to regulate their behavior.”

(p. 25) (emphasis added).

The potential endorsements discussed in the Opinion were candidates connected directly to political parties.  But the vast majority of those who run for judge in Minnesota are not formally endorsed by a political party.

I could not find any Opinion analysis directly on point – regarding sitting judges endorsing candidates for judge.

I suppose the Opinion could be read to say that endorsing a person for the office of judge is necessarily an endorsement of their political party.  But that doesn’t really make sense for judicial elections.  First, there’s no sure way of discerning a judicial candidate’s political party if they do not publicly declare it.  Some judicial candidates have no strong ties to any political party.

Second, if we accept the Opinion’s analysis, then what about the long-term Minnesota practice of sitting judges privately endorsing lawyers for appointment to the office of judge?  The audience for those endorsements is the Governor or his judicial selection commission, with the Governor making the final decision (and, I’m told, including the Governor’s interview of the lawyer-candidate).

Of course, the Governor is the highest-ranking member of his party (as acknowledged by the 2005 8th Circuit Opinion).  It seems clear that a lawyer who wants to be appointed judge by a particular Governor would know to seek private endorsements from sitting judges who have some connection to that Governor’s political party.

When judges privately recommend a lawyer for appointment to judge – don’t they do precisely what the 2012 8th Circuit Opinion says a State is obligated to regulate – “trade on the prestige of their office to advance” a candidate for the public office of judge?

Yet Rule 4.3 specifically authorizes candidates for appointment to the public office of judge to seek “support” from anyone.

So what’s so different between public endorsements, and private, behind-the-scenes endorsements?

It’s not clear whether or not the 8th Circuit knew about the practice of sitting judges endorsing candidates for appointment to judge.  Yet it almost seems that the 8th Circuit Opinion deftly side-stepped the spot where this would been troublesome for its analysis.

My concern is this notion that it’s important to preserve the image of neutrality in the courts.  I think we should be  more concerned with authenticity.  The whole point of the ‘appearance of impropriety’ rule of law is to protect the parties.  It was never intended to fuel a giant PR machine used to foster the mystique of honor – over actuality.  Let’s face it:  many judges are connected to political parties.  That’s reality.  It’s also human.  (Note that the Minnesota Code specifically permits judges to register to vote and to participate in party-based causcuse-type election procedures.  See Comments [3] and [6] to Rule 4.1.)  Why hide that from the public?  Wasn’t that the gist of the prior Wersal decisions?

To me, if a judge is qualified, s/he has learned how move to the middle.  I don’t care what a judge’s political party is if that judge has learned to ‘move to the middle.’  But if a judge exhibits embroilment in the case, where behavior or rulings show marked unfairness or favoratism (this applies to district judges but also to policy-making judges in a slightly different way), then my clients do want to know what fuels that, whether it be friendship, ex parte communications, political party, etc.

In other words, I believe that the issue of political party should not, will not matter at all, for a judge if the judge exhibits good judging.  And that goes for judges who are appointed and judges who are elected.

What’s the point of keeping reasons for potential bias from the public?  If the issue is really sitting judges trading on the prestige of their office, why is it ok for them to make private, behind the scenes endorsements of candidates for appointment to the public office of judge, just not public ones?  This really looks like a ‘what the public does not know won’t hurt them’ analysis.

This is precisely what I rail against in the justice system.  I regularly see how parties who are just trying to get a fair hearing in their case are hurt by what they do not know.

I do not believe secret is better.  I am a proponent of telling the public everything and letting them decide.  It just doesn’t work when government tries to portray an image.  We, the public, eventually find out.  Want to exhibit integrity?  Might as well be straight with us from the start.

I believe that what the public wants, what the public deserves, is a justice system that enforces the rules requiring neutrality from judges in their judicial decision-making. 

Let get serious with showing the public that we care about neutrality in the trenches, where their cases are litigated.

We in the system all know that out there now, are judges deciding cases based on what their buddies want, what their collegues want, what a bully judge tells them to do, what they think some political party wants, or because they are emotional about an issue, a party, or a lawyer.  I am interested in attacking that problem.

And I don’t think I’m alone.

To me, the beauty of the First-Amendment-protecting prior decisions in Wersal’s cases (see 2002 US Supreme Court case and 2005 8th Circuit Opinion link above) is that they are about permitting candidates to communicate to the public voting in elections, the people whose lives are impacted by the judiciary and who want to have some small voice in that.