You might recall that I ran for Hennepin County judge against Thomas Wexler in 2002.
In January 2009 Judge Wexler left the bench.
In late 2011, several clients of mine had issues with Judge Lloyd Zimmerman. In December 2011, one of my clients indicated by letter indicating he would seek to recuse Judge Zimmerman. For reasons that are still unclear to me, this set off a veritable firestorm of events. Judge Zimmerman began issuing sua sponte orders. These appeared, to us, to be roadblocks which would (unfairly) prevent the client from filing his motion to disqualify Judge Zimmerman.
My client made the decision to seek review by a higher court.
I went to the signing judge to get some orders signed first. I thought it was going to be perfunctory.
When I learned retired Judge Wexler was the signing judge that day, my instinct was to leave. But I have tried over time to give people in the system with whom I’ve had a bad experience the benefit of the doubt. I believe in second changes, and when appropriate, third chances.
What transpired was a fairly weird session, which ended rather quickly. Suffice it to say that Judge Wexler signed one of the proposed orders, and I left with one signed and one unsigned.
For reasons that have never been clear to me, documents signed by the signing judge are handed back to the lawyer (or police officer) to walk them to filing. I can tell you now from experience that this is a bad system. Why would we want to spend any time in this system arguing about what the signing judge signed? Why doesn’t the signing judge keep a copy like all other ports of call?
So anyway, I handed the documents to a court clerk at filing and thought nothing else of it.
As it turns out much was happening behind the scenes.
For purposes of this post, after talking to Judge Zimmerman and his clerk(s), Judge Wexler filed a complaint with the Minnesota Office of Lawyers Professional Responsibility against me.
Even after reading the complaint, it took me some time to figure out what it was about.
The complaint alleged that in the document I had walked to filing, I had “mix[ed] up the pages.”
Wexler stated, “When the [documents] were presented to me, I am almost 100% sure they were each stapled. So to mix them up Ms. Clark would have had to remove the staples and restaple them.”
Apparently the complaint was that I had purposely unstapled a document in order to mix up the pages.
Even at best, this was a strange complaint.
But here’s how it’s played out so far:
Craig Klausing of the Office of Lawyers Professional Responsibility “investigated” the complaint. This consisted almost entirely of him asking me two questions.
And then he charged me.
The litigation started gearing up, and Judge Wexler’s deposition was noticed.
The original document that I was said by Wexler to have purposely unstapled and then re-stapled was brought to a deposition by Judge Zimmerman in an envelope. The envelope was held by the prosecutor (Craig Klausing) of the OLPR until Judge Wexler’s deposition. Then it was opened in front of all of us there.
I took a picture of it.
Judge Wexler looked at the document, and admitted under oath that there was no evidence of a staple having been removed, and the document re-stapled. (Not verbatim.)
So…what happened to their case?
I was present and saw Craig Klausing hanging his head so much it almost touched the table. He would not look me in the eye.
You’d think Klausing would have dismissed this charge at that time.
But the case has trudged on.
I still am having difficulty figuring out how they can get (even in theory) from mixing up pages, to an ethics violation.
During one of the hearings, it became clear that Mr. Klausing or staff under his control had mixed up numerous pages in one of the hearing exhibits. I actually spent some time following the hearing sorting them out so that an accurate copy would go to the Judge. Apparently when Klausing mixes up pages, that’s not an ethics problem.
We live in a world of poignant double standards.
Interestingly, Judge Wexler stated in his complaint to the OLPR, “I expect that Ms. Clark will argue that our history of conflict per the 2002 election has some bearing.” I didn’t say it. He did.
The Charges against me are not the typical types of charges you usually see against lawyers. Instead, all of the charges were generated or instigated by Hennepin County Judges.
Many of you know that I have been willing to take client cases in which judicial conduct was questioned. When the client decides to question judicial authority (by filing a motion to recuse, or by making a complaint to the Judicial Standards Board, for example), and if the law and facts support that, I will help them with the legal process. It seems there are judges who wish I would not do that lawyer work. But the work is important for clients and in pursuit of justice, and I take those things seriously.
Did I realize that I was painting a target on myself by doing this work? Kind of. That is, I never thought of it at the beginning. I just did my job. I had yet to learn how many lawyers were initmidated into not doing this type of work. I really didn’t know I was standing out.
I know it now.
And I still continue to do this work.
My clients’ right to criticize judges is protected by the First Amendment. And I am their spokesperson. If all Americans shut up and back down when we are pressed, the First Amendment would shrivel up and blow away.
Over the years, judges have been asked to uphold the First Amendment in this country. Sadly, they have not been quite so willing to do so – when it comes to judges. (See my discussion of lawyer gag rules and In re Graham).
Let’s see how this plays out.
Over time, I’ll go through each of the charges against me with you in some detail. But for this post, I’m just giving an overview.
Judge Lucy Wieland’s complaints
In 2006, I encountered some conduct of Minnesota Judge Lucy Wieland. At the time, she was Chief Judge of the Fourth Judicial District (Hennepin County). My clients and I filed a complaint with the Judicial Standards Board. This was the first time I had done this. Boy was I naïve. Even as much as I knew about accusing government insiders, I guess I assumed that the Board would investigate, and hold her accountable.
As it was, Judge Wieland was not held accountable. The JSB did not even investigate. Instead, the JSB faxed Judge Wieland a copy of the complaint I’d written. And Judge Wieland turned around and sent it to the Lawyers Board, claiming that I had made “false” statements against her in that complaint.
Usually, the toughest part of proving retaliation is proving the connection between the protected conduct (here, filing the complaint with the JSB) and the retaliatory conduct. Judge Wieland has made that part easy in this case, by actually filing the JSB complaint with the Lawyers Board.
Also in 2006, when we realized that the JSB was not going to help, I helped the same client file a federal lawsuit naming Judge Lucy Wieland. After my client settled the case with the Attorney General’s Office, Judge Wieland turned around and sent the complaint(s) in that case (yup, the ones we’d filed with the federal court, also First-Amendment-protected conduct) to the Lawyers Board, and claimed I’d made “false” statements about her.
Ok, so now I got how it worked. Criticize a judge – we attack your law license. Folks, it’s been this way in the system for many years. But based on what I know about the current Minnesota justice system, I am hopeful that a lawyer can defend against these types of charges. And, I have raised the First Amendment as one of my defenses.
The Office of Lawyers Professional Responsibility
Some of you already know that I have for several years defended lawyers at the Office of Lawyers Professional Responsibility (the prosecutorial arm of the Lawyers Board). I defend lawyers there as zealously as I defend all types of people. Based on what I know about government prosecutors (and this, from much experience) I would venture to say that there are those prosecutors within the OLPR who are not thrilled to litigate against me.
Make no mistake, the OLPR which decided to charge me in this case is my opposing counsel in other (Lawyers Board) cases. Do you wonder whether the OLPR has charged me to try to get me out of their hair? I’ve wondered that.
The OLPR added one of its own charges to the complaints made by Judge Wieland. The OLPR alleged that I had made true statements about a hearing in a criminal case. That’s right, true statements. And what did they charge me with? Making a false statement.
Judge Lloyd Zimmerman
In late 2010, a client and I filed a JSB complaint against Judge Lloyd Zimmerman (district judge in Hennepin County, Minnesota) after we observed disturbing conduct by him during a hearing.
Within a few months, Judge Zimmerman had generated or continued two of the charges that are now filed against me. Hennepin County Judge Robert Blaeser and retired Hennepin County Judge Thomas Wexler are the official “complainants.” But Judge Zimmerman’s conduct and motivation loom large in both of these charges.
In one of those two charges, I am being accused of filing a document that removed Judge Zimmerman from a client’s case (meaning he would get a new judge assigned, which he did) without cause (meaning we did not have to state a reason). This seems to have disturbed Judge Zimmerman, who made an ex parte communication by email, to get Judge Blaeser to go out of his way to put Judge Zimmerman back on the case. Which he did. My client immediatley made a complaint about this process, even before we knew about the ex parte email. But the JSB did nothing to hold these judges accountable. And I was the one that got charged.
In the other of those two charges, I was accused of stapling two documents wrong (mixing up the pages). Yup, mixing up the pages.
(Is this how you want your tax dollars spent?)
Chief Justice seat up for Election this year (2012)
These Charges are set on a stage in which it might be important to remember that in 2010, I and two others worked to get the Chief Justice position on the ballot this year – 2012. (That seat had not ben run for 10 years.) In that 2010 lawsuit, I stated my intention of filing to run for that office.
I have not made a secret of the fact that I am a judicial reformist.
Let’s see how this plays out.
As more than one person has commented, it’s easy to see who would want me not to succeed in a campaign to be Chief Justice. How about those who are committing or benefitting from judicial misconduct? Once this image is drawn, it’s tough to get it out of your head.
Watch to see who has already attacked me, and who lines up to attack me this year. What we’ll probably end up with is a list of those who want to keep the “old ways” – that is, protecting judicial misconduct and the judges who commit it, and those who benefit from it.
Finally, I can talk to you about the case that several judges instigated by generating or making complaints to the Minnesota Office of Lawyers Professional Responsibility (OLPR) about me. The Judges are Hennepin County Judges:
1. Lucy Wieland
2. Robert Blaeser
3. Lloyd Zimmerman and
4. Thomas Wexler.
A lot of you already know that I (Jill Clark) have been publicly “charged” with allegations that I violated my lawyer ethics rules. I started this blog to talk about that, so that the public could learn about what was happening and form its own opinion of the charges and the process.
But then a strange thing happened. When the OLPR served the public charges, I was accused in a public document. I wanted to be able to respond in public. But I could not. Do you know why? Because 3 of The Hennepin County Judges (all the ones listed above except retired Judge Wexler) made moves to try to keep me from discussing documents about them in public.
Isn’t that strange? The elected officials, accountable to their public did not want public scrutiny of documents that illuinate their conduct. I invite public scrutiny of mine.
The 3 Hennepin County Judges had produced documents in response to my subpoena’s in the first (non-public) phase of the litigation. They tried several ways to keep those documents from being available to you – the public:
- They tried getting the documents back so they would never see the light of day;
- They tried redacting the documents so that the content was blacked out (or substantially so); and
- They tried claiming that I had violated a court order relating to those documents (even threatened to hold me in “contempt,” which is interesting, since they are only witnesses in this matter and have no judicial authority); and
These maneuvers meant that it took me literally months to get my hands on certain documents, documents that they had produced to my lawyers but did not want Jill Clark to see.
To ensure that I was complying with all court orders, I chose to remain silent until I could get a clear judicial ruling that documents from the non-public phase are now public.
That litigation is not entirely over. I am still litigating to try to re-classify certain documents as public that The Judges have worked to keep confidential. But at least at this time I can began to talk to you about the case, confident now that most of the documents from the non-public phase are now public.
As I have said to you in this blog, I have nothing to hide. I believe that transparency in the justice system should include documents that permit us (the public) to know what our elected officials are doing while in office.
I will begin to blog about the substance of the case, as well as documents that shed light on these judges’ conduct.
In Minnesota, judges fill specific seats. Even though Hennepin County Court has around 60 judges, and even though approximately 1/3 of them run for office every two years, the winners are not the 20 highest vote getters.
Instead, a challenger must file for a specific seat. Usually this means that a challenger must file against a specific sitting judge.
You will notice that overwhelmingly, when an incumbent Minnesota judge is running for the same seat for the next term, they file their affidavit of candidacy on the very first day. The reason for this seems obvious: the sitting judge wants to be clear they are running for another term. And the early filing of a sitting judge might convince a would-be challenger to file for a different seat.
Lloyd B. Zimmerman was appointed state district court judge to fill the end of a term for seat 60 (Hennepin County), by Minnesota Governor Jesse Ventura on December 1, 2000. Because of a provision in the Minnesota Constitution, the election for that seat was not to occur until more than one year after the appointment (Art. VI, Sec. 8), or 2002.
Some attorneys had voiced complaints about Judge Zimmerman’s behavior from the bench in the early days of his judgeship. And when the filing period to run for Minnesota judge in 2002 arrived, Judge Zimmerman did not go down immediately to file his affidavit of candidacy.
In fact, time went by, and Judge Zimmerman still had not filed to run. It was nearing the end of the filing period. Could it be he had decided this was not the right job for him?
A lawyer, Julie Delgado-O’Neil, then filed to run for Seat 60. At the point she filed to run for Seat 60, no one else had filed. After Delgado-O’Neil filed to run, and close to the end of the filing period, Judge Zimmerman finally filed.
It is not clear what happened between the time Delgado-O’Neil filed, and the time when Judge Zimmerman finally filed. The obvious question is, did it take some convincing to get Judge Zimmerman to run? This is a particularly poignant question, given that there is at least an appearance that Judge Zimmerman was not going to run. Did people convince him to run, and if so – how?
Had Zimmerman not run, our experience from other ‘open’ seats is that numerous lawyers would have run, and the public would have had numerous candidates to choose from.
At the general election, Delgado-O’Neil garnered 46.6 % of the vote, and Judge Zimmerman garnered 53.05% of the vote, and Zimmerman was in for another 6 years.
Watch for A Decade of Observing the Bench: 2003: Judge Paul A. Magnuson