Tag Archives: Judge Wexler

The Complaint Against me by Judge Wexler (retired)

I told you that I’d discuss the charges against me in some detail.

You might recall that I ran for Hennepin County judge against Thomas Wexler in 2002.

I wrote a post about that, and my experience with Judge Wexler during a case.  Part 1 here and Part 2 here.

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: a Summary

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.

Sigh.

(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!

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.

A Decade of Observing the Bench: 2002: Judge Wexler: Part 2

 

 

Judge Wexler finally denied the statement he’d made in chambers (“This is not the first black person to appear in my courtroom.  If we allow these people to bring these motions, they will clog the system”), during the judicial campaign.

 

I filed to run against Judge Wexler for his state judicial seat, 53, which is located in Hennepin County, Minnesota.

Although at first I didn’t think I’d talk publicly about his statement, after talking with the community, I did.

This was 2002, the first judicial campaign around the country, post White.  I wouldn’t have run had it not been for the White decision.

Even in the wake of White, I was nervous about what I could say, and what was prohibited.  I spent about a week reading every case I could find that had been brought against a lawyer who was campaigning for judge.  Although I might have missed a few, I really did do a nationwide survey, reading everything I could get my hands on.  This was a disillusioning time for me.  I saw a real pattern in these cases.  The accuser was routinely the incumbent judge (being challenged in the election), the prosecutor was the “ethics” police, and the loser was routinely – you got it, the lawyer running for judge.

This did not seem to be about ethics to me.  It seemed like an old worn out tactic used in many campaigns, to hit your challenger to try to discredit them.  If you can get government to hit your challenger, all the better.

This was a dark side of the justice system that I was seeing for the first time.  The message seemed clear:  danger, beware, if you run for judge you will risk your career.  I could not be proud of this history.  And I really understood then the need for the White decision.

I learned that the lawyer who had campaigned for judge against Judge Wexler in the previous election had been investigated by the ethics police because he used the word “few” when he they said he should have said “a couple,” in describing prior ethics problems for Judge Wexler.  So I got the game.

(This technique by incumbent(s) would continue, more on that in later posts.)

Even armed with all my research, I look back now and see how naïve I was.  I just didn’t realize how my life would change simply by signing that affidavit of candidacy.  It does seem to me now that there are judges who don’t want to have to campaign.  It’s one thing to run for office when there is no one else on the ballot.  I do understand that it is altogether another thing when you have a challenger who can speak.

Some focus on the money, that we should not put money into judicial campaigns.  Money in all campaigns is a continual issue.  All efforts to deal with the issue seem to fail over time.  But leaving that aside, I do wonder whether the issue is better described as not wanting to campaign.

Me, I loved the campaign.  I went door to door in Hennepin County (you cannot knock every door in Hennepin County, but you can knock a lot of them), talking to people about the justice system.  I focused on the way in which the courts administer justice, rather than any particular issue.

And people wanted to talk.  I stopped in coffee shops, went to parks, attended outdoor events.  And in every venue, I found people who wanted to talk about how we could better administer justice.

I have been stunned by the argument that the average person has no opinion about the courts, doesn’t care about judicial elections.  I just did not find that to be true.  I talked to people from all walks of life, and most were happy to be asked.

The whole ‘hot button issue’ thing got blown out of proportion.  Some people wanted to talk about those, but mostly those were lobbying groups, seeking some type of candidate commitment.

I felt the campaign expanded me as a person and as a lawyer.  I have often thought about how the bench could view campaigns in a positive light.  This is an opportunity to focus on getting feedback from the public.  Some judges do take time during the year to meet with the community.  But many are, like most of us, too busy doing the day to day work to get around to it.  Campaigns force public servants out into the community to walk among the public.  Who wants to miss this fabulous opportunity to focus on how justice is dispensed?

My pitch to my public, was that the way in which Judge Wexler administered justice should be scrutinized.  It’s one thing to seek efficiency.  It’s another to let efficiency become the engine to the train, at the expense of everything else.  I focused on how change was needed to make the system more fair.

Judge Wexler decided to deny that he had made the comment in chambers that day.

Of course, having been in the room, I knew his denial was contrived.

I can’t say I was shocked, but I was disappointed.  And I did see the potential for ‘politics’ in judicial elections.  I noticed politics in the union endorsement (now, why doesn’t anyone complain about unions being able to endorse candidates for judge?).

I saw politics in the StarTribune endorsement.  The StarTribune had reported that in 1991 a lawyer

overheard Wexler make a racial remark.  As Wexler reviewed the description of extremely violent behavior involving a couple, she said, he asked an attorney about their race.  When she said they were black and asked whether that was significant, he said:  “I don’t know anymore.  It seems that some people are more prone to certain types of behavior than other people.”[1]

With full knowledge of that story, and the statement he had made to me in chambers in 2002, the StarTribune endorsed Judge Wexler, saying he was not the “architect” of the problem.  I have never understood what that meant, but the overall meaning of the endorsement was clear:  if you are sitting judge you are given lots of leeway.

But in 2002 I had the right to say those words about Judge Wexler and to discuss what those words said about the attitude he brought to the job of judge.  This, in itself, was change.

Just after midnight, the vote tallies rolled back toward Judge Wexler, and he kept his seat.  But my field of vision had been expanded, and I began to see things in the justice system I had never noticed before.

Watch for A Decade of Observing the Bench:  2002:  Judge Zimmerman

[1] StarTribune May 25, 1993, “Resolution of Hennepin judge’s sex-harassment case is questioned,” David Peterson, Staff Writer.  This article also states that Wexler “denies parts of that claim.”

A Decade Of Observing The Bench: 2002: Judge Wexler: Part 1

In 2002, I was representing a woman born in Ethiopia in a state criminal action.  In my opinion, the criminal case should never have been brought.  I would come to learn a lot about such cases.  But this blog really features my experience with Judge Wexler.

At the time the Honorable Thomas W. Wexler was an elected judge, serving on the Hennepin County bench in Minnesota.  (He is no longer an elected judge.)

I believe it was the first time I had encountered Judge Wexler in a case.  Upon arriving at court that day (having subpoena’d witnesses, and with an expert witness waiting in the lobby to testify), we have been told our client’s motion would not get heard.  This was a problem for my client.  My client had a constitutional right to bring motions, so that she could effectuate her other constitutional rights.

There were 4 of us sitting in chambers at the Southdale Courthouse, where Judge Wexler was assigned that day.   Judge Wexler, me (acting as defense attorney), a second defense attorneys, and a municipal prosecutor.  Judge Wexler was reading another judge’s written order on a motion my client had brought prior.  Pointing to the order, Judge Wexler said,

“This is not the first black person to appear in my courtroom.  If we allow these people to bring these motions, they will clog the system.”

Judge Wexler’s statement caused me a lot of concern.  In a system that had acknowledged the statistical reality of the over-charging, over-conviction of people of color, this showed an unwillingness to deal with the issue in the case.  I was concerned about Judge Wexler’s bias (and the effect it could have on my client), but also about systemic bias.

But my focus for this blog is the aftermath of that statement.

There were four people in that room when the statement was made on January 8, 2002.  I immediately reacted to the statement, expressing my concerns about the statement – directly to Judge Wexler.  This was appropriate, both in representing my client, and to give Judge Wexler a chance to explain himself.  I raised the findings of the 1993 Task Report of the Supreme Court Committee.  (See article about that report here and another article about the statistics here).  I said perhaps things had to start to be done differently.

We discussed it.  Eventually, Judge Wexler backed down a bit, stating that perhaps my client’s case was an “exception.”  (Although her motion scheduled for that day never got heard.)  In other words, this was not an isolated statement that I might have misheard, or taken out of context.  Judge Wexler’s views were clearly stated.  I, in representation of my client, clearly opposed those views.

At no time did Judge Wexler withdraw the statement quoted above.

The Prosecutor left the room.

I made note of the statement quoted above, and committed it to an affidavit signed under oath.  (Both defense attorneys signed affidavits memorializing Judge Wexler’s statement under oath.)

Even after those two affidavits were filed in the district court file, and the issue was discussed in a court hearing, neither Judge Wexler nor the Prosecutor denied that the statement had been made by Judge Wexler in January 2002.

In fact, a lot of time went by before anybody denied it.

Quite some time later, the Prosecutor wrote a letter to the Court of Appeals (not an affidavit submitted under oath), denying in some form that the statement had been made.  I am in a unique position in writing this post.  I had been in the room.  I had heard the statement with my own ears.  I knew that the Prosecutor was not telling the truth to the Court of Appeals.

I am not saying this Prosecutor is a bad person.  I rather like him.  But clearly, once it became an issue in the case, he was not willing to admit that Judge Wexler had made that statement.

Why not?

It seems the statement would not have to be denied, unless is showed Judge Wexler in a bad light.  I don’t think this is the only case in which a lawyer “forgot” hearing a statement made by a judge, or lied to protect a judge.  Why does this occur?  Is it because lawyers fear that they will be harmed (perhaps lose the case, or just be ‘disliked’ by the bench) if they do not?  Or, do they think the judge or the judge’s friends will favor them if they do?

We just need to talk more about this vital issue:  lying by those within the justice system, a system that tells the public it is about seeking the truth.  I mean, call me simplistic, but I think that a system that says it is about seeking the truth should be about seeking the truth.

By this point in the case, now months after that discussion in chambers in January 2002, Judge Wexler had never denied making the statement.  Do you know when he finally denied making it?

Watch for 2002:  Judge Wexler:  Part 2.