Tag Archives: judicial code of conduct

Why won’t Mark Thompson talk to me?

Update:  I tried calling Mark Thompson again today.  I was told that a Supervisor in Civil Filing (Lynn Fuchs) could not locate his phone number.  Gosh, must be a big place.

So I called the number that was given to me, supposedly for Cherie Nelson.  But I got a general-sounding voicemail box, saying ‘court administration’ was not available.

Because I could not reach Mark Thompson by phone (I have never been able to reach him by phone, see my post below), I sent him the below email:

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I am trying to get copies of invoices paid to vendors who so-called “digitalized” court records.  Why should this be such a big drama?

I have seen an RFP let mid 2012, to digitize data in the Fourth Judicial District.  Attached was a sample contract.  I want to point out that the vendors INDEMNIFIED the People of the State of Minnesota.  (That’s not an exact quote, but that’s the gist of it.)  So if anything went wrong, there will be many places for the People to go to get redress.

I talked to Carla Heyl, on Tuesday (March 19) and she said that her Division (Legal Counsel Division of the State Court Administrator’s Office) negotiates the contracts with vendors, but she would not be able to provide me with a copy unless I knew the name of the vendor.  (That makes no sense; the public needs to be able to request data, it is the State Court Administrator’s job to locate it.)  I asked where the original, fully-executed contracts are.  She said in the “districts.”  I asked – don’t you keep a copy in Legal?  She said no.

Wow.

If a private attorney did that, it would be malpractice, or we’d get charged with an ethics violation.  Not keep a copy of the Signed contract?

Wow.

Anyway, that’s what she said.

She said the “districts” are the ones that keep the contracts, because they are probably STILL PAYING VENDORS, and they “encumber the funds.”

According to the “sample contract” that I reviewed, Mark Thompson was charged with approving invoices for payment.

So Mr. Thompson, clearly you know where these invoices are.

I want the invoices, and I want records showing which ones you approved for payment.

And here’s the thing.

This so-called RFP let in mid 2012?  Well, I was not able to get civil files at Hennepin County (Fourth Judicial District) when I needed them to prepare an appeal brief, beause it was out for “scanning.”  When it “got back” (what vendor did that go to, please….) I had to wait until many thousands of pages were printed out from a “scan.”  This made my review quite lengthy and tedious.  When lawyers review paper files, we can quickly move 40 pages to the side, when they are titled, and stapled.  But when it is scanned and then printed, you end up going through every single page.  It’s a real imposition to us.

And I don’t recall being asked, about any of this.

But here’s my point for now:  how can the RFP be let in mid 2012, when the scanning was clearly occurring en masse in mid 2011?

How much, total, was paid to vendors for the Fourth Judicial District “digitization” project?

How much for the Second Judicial District?

For Dakota County?

Total, please.

Original post re Mark Thompson:

I began trying to talk to Mark Thompson, the Minnesota Fourth Judicial District Court Administrator, at some point before 2006.  I don’t recall precisely when I first tried to talk to him, but I know that by 2006, I was actively working to communicate with him.

I was requesting public records, and he, I was told, was the one who would know where they were (that is not verbatim, but that is the gist of it).  I call, and stopped in, and called, and stopped in, and called, and stopped in.  Never, not once, has he ever spoken to me.

His assistant, or the receptionist, someone will tell me some reason why I cannot talk to him.

I recall that once I got a voicemail message from him.

And I have gotten emails that have his name on the from line.

But I have never had a conversation with him – despite my numerous tries.

I wonder if he and Peter Ginder went to the same charm school.

At any rate, I tried again today to talk to Mark Thompson.  I called Civil Filing and a clerk told me that they were not supposed to give out his number.  That’s not verbatim, but that’s pretty close.  I asked why.  I was not satisfied with the response.  Public officials are supposed to serve the public.  Mark Thompson’s salary would indicate (to me, a member of the public) that he should be available to his public.

I specifically asked the clerk if she could look up his number.  She went off the phone, but apparently instead of looking it up, she talked to her supervisor.

Lynn Fuchs.

I then asked to speak to Lynn Fuchs, and she did talk to me.

I asked for Mark Thompson’s phone number.  She claimed (and yes, this is really truly what she claimed) that she COULD NOT obtain Mark Thompson’s phone number.  I asked her several times, in different ways.  She persisted that (even though she is a supervisor in court administration) she was UNABLE to obtain Mark Thompson’s telephone number.

Huh.

It was surely not believable to me.

I was directed to Cherie Nelson, who was described as Mark Thompson’s assistant, or his secretary.  I telephoned her from my phone, and got a message that said “court administration” was not available and to leave a message.  I then was transferred to her number from within the building, and got a message saying it was Cherie Nelson’s phone, and to leave a message.

I did leave a message.

I asked that she email me so that I could detail for her my public records requests.

It is now past 5 o’clock.  I did not receive any email from her.

I don’t know the reason for that, but that’s the situation.

It has never been an easy path, requesting public documents from the Fourth Judicial District.  I did not expect a rose garden.  But I do expect to have my call returned, and I do expect the Fourth Judicial District Court Administrator to be availble for my phone call, if not immediately, at least to call me back when he is available.

Mark Thompson (I feel confident you will be told about this post), please ready the following documents:

1.  All invoices from contractors  for the digitization of court records (paper, microfiche, etc.) from 2008 to present.  (And whatever documentation exists, Mr. Thompson, indicating that you or your staff approved payment.)

2.  All contracts (all portions, including attachments, addenda, certificate, amendments, etc.) with contractors for the digitization of court records (paper, microfiche, etc.)

3.  All documents showing the current location of paper files.  (That is, if they are at contractor locations, or at the Fourth Judicial District.)  All locations in which the Fourth Judicial District has kept paper files and microfiche since 2008 (such as City Hall, the Public Safety Center) and the security for those records while they were in executive branch control.

4.  All documents evidencing written policies, practices, protocols, physical and electronic security for digital court records.

5.  All court record retention policies that have been in place at any time, 2006 to present, and who or what created/authorized them.

Let’s start there.  Please call me if you have questions.  If you don’t have questions, I will assume that you are preparing these documents.  Please let me know when they are ready.  I do not expect to pay for research time for these documents.  I would assume they are readily available to you.  If you claim “research” is necessary, please email me at jillclarkcitizen@yahoo.com, with the precise nature of the research, as well as the price for each portion of research.  I do not believe that “research” charges should be used as a way to prevent the public from obtaining documents, and I don’t believe it is intended as cost-shifting.

Thanks, Mr. Thompson.

I look forward to working with you on this important project!

Chief Justice Lorie S. Gildea – who decided to destroy court records?

I have not gotten a response yet about who or what decided to destroy original court orders and other court records, and to have them scanned and stored in a digital environment.  (See various posts on this blog on this topic, and my attempt to get answers from Sue Dosal and Jeff Shorba.)  If you are the Chief Justice, don’t you have an obligation to inform your public?

Do you know who or what made the decision?

And who or what selected the company that would do the shredding and scan the records?

And where is the contract?

I want to see it – and I want to see it Monday.  No stalling, no run arounds, no games.

 

Letter to US District Judges

http://jillclarkcontinues.wordpress.com

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 Cities.com (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.

Judicial Reform: Time for a Paradigm shift

You’ve heard that phrase, “re-arranging deck chairs on the Titanic?”  It refers to efforts that are wasted, because they are useless.

Judicial reformists will take any progress they can get.  But what they really want is a paradigm shift for the Third Branch.

Stated another way, if we keep doing what got us here, we will never get out of it.  If we keep using the bricks to rebuild the house in the same way, we will keep seeing the same problems.

We all know there are problems.  America’s rate of incarceration is too high.  America has the fewest judges per capita of any so-called first-world nation.  We can’t stop tinkering (baby steps eventually lead to new roads).  But judicial reformists believe it is time to stop re-arranging the deck chairs.  Let’s figure out where the iceberg got us, plug the hole in the side, and get on our way.

Part 1 of this series discussed the roots of the American self-governance system (here).  James Madison believed that we should never restrict liberty.  The solution, for Madison, was to inhibit tyranny:  tyranny of government over the people and the tyranny of the majority.

Many know that the three branches of government were designed to thwart tyranny through checks and balances.

But its not as well known that the concept of federalism (having both a state and federal government) was also part of the effort to foil tyranny.  The concept as explained by Madison, was to cut the country first in half (federal v. state) and then again.  This would maximize the checks and balances.  (Federalist Paper #51, here).

If we forget the structure of our government, the tools we have been given to hinder tyranny, we can spend lots of time and resources re-arranging the deck chairs without getting to the source of the problem.

At times, we need the federal government to be a check (and balance) on the state government.  At times we need the state government to be a check (and balance) on the feds.

The Legislature keeps the executive in check through legislation.  And when the Legislature gets out of balance, the courts should be there to keep it in check.

For years in Minnesota, our courts have been doing the work of the Legislature, instead of keeping them in check.

The Legislature has many members, lots of staff, plenty of attorneys.  But the Legislature has taken the easy road, refusing to do the research necessary to comply with the Constitutions.  (The Minnesota Legislature must ensure its laws comply with both the US and the Minnesota Constitutions.)

Then, the Legislature has expected the courts to do their work.  The Legislature has expected people like me (or underfunded public defenders) to wait years for the right ‘test case’ to raise an issue in the courts, a constitutional issue that the Legislature should have researched in the first place.

Next, the Legislature has expected the Attorney General to go to court to argue that their statute should prevail.

Then, the Legislature has expected the courts to figure out how to make constitutional sense out of their laws.

Surprisingly, the courts have done this for the Legislature.

And what have the courts gotten in return?  In return, the Legislature has cut their budget to the point they can barely operate.  The Legislature has required the courts to collect money (filing fees), deposit it into the general fund, then required the courts to go back to the Governor and Legislature to beg to get some of that money back to fund the courts.

The underfunded courts, rather than sending badly drafted statutes back to the Legislature telling them – sorry, this does not comply (we call this “striking” statutes, or “declaring them unconstitutional”), the courts have tried in case law to make sense of any mess the Legislature puts out.

For an example, see State v. Crawley, a case from 2012, where the Minnesota Supreme Courts twists the statute into a pretzel in order to try to “save” it – rather than striking it, sending it back to the Legislature with a little note pinned to it that says, “try again!”

If the courts did this, the legislature would learn, quickly, that it cannot continue to abdicate its responsibility.

Cases that try to make sense of unconstitutional statutes do not protect the public.  This tradition has harmed the People of the State of Minnesota.  Because police officers don’t do 10 hours of constitutional research into case law before they arrest someone.  They look at the statute.  Narrowing statutes by case law creates a bigger mess than the Legislature created in the first place.

And, it only incentivizes the Legislature to continue to abandon its duty to the Constitutions.

In Minnesota, the Legislature has passed a statute that requires the Attorney General to support the statute if it is challenged by an individual.  In other words, the Legislature wants the AG to argue that the statute wins, and the constitution loses.  That is backwards.

The Constitution is a higher law than statutes.  What we’ve done over time, is to elevate statutes above the constitution.  Revitalizing our Constitutions is a  major part of judicial reform.

To make it worse, the Legislature has, through its selected counsel, for many years, waived its appearance in the district court and the court of appeals.  For everyone else, the courts require that arguments be made below before they can even be considered at the Supreme Court level.  Yet the Legislature has been given special privileges, has been permitted to waltz in at the last minute, making arguments the individual cannot possibly tackle at that late stage of the game.

The Third Branch has always had the power to stop this.

Based on simple judicial rules, the Legislature loses when it fails to appear in the district court.  It loses again when it fails to appear in the court of appeals.

The AG will likely say it lacks resources to appear in court every time a statute is challenged.  Time to get out the tiny violins.  The Legislature controls the purse.  If the AG is underfunded, who should bear the brunt of that?  Maybe the AG wouldn’t have to appear in court so much, if the Legislature drafted better statutes.

Imagine, as well, how many resources one individual does not have.  Yet we’ve forced individuals to be private attorneys general, to fight for the Constitutions.  We’ve expected individuals to take their time (sometimes they sit in jail during this) and resources (which they don’t have, either), to try to save our government.  Is it any wonder these people feel disenfranchised?

The paradigm shift?  Send the Legislature packing.  Tell the Legislature, in no uncertain terms, the Third Branch is here to be a check and balance on you, and it’s time you started doing your job.

Tell the Legislature, no more free rides.

Tell the Legislature that the courts don’t have enough money to be re-writing all the messy statutes that the Legislature puts out – not until the Legislature gets serious about funding the courts.

Oh, and by the way, the US Supreme Court has already decided, many years ago, that narrowing by case law is a dangerous proposition, and that the courts are in trouble if they use that technique, and do not ensure that every single case follows it.  (See Kemna v. Lee, here).  Why would the courts take on all that extra responsibility?  Especially if they are underfunded.

We were gifted, in this country, with a structure of government designed for multiple checks and balances.  But the branches must take that job seriously, or it won’t work.

Get tough, courts.  Stop letting the Legislature run roughshod over you.  You are a co-equal branch.  Let Minnesotans knows that the Legislature is expected to follow the law.  Get busy doing your job protecting the Constitutions.

Obviously, the point of cutting the country first in half, means that Americans are entitled to rely on the federal half, at times when their constitutional rights are not being protected in the state courts.  More on that in the future!  (See Page “Our federal lawsuit against the Minnesota courts” at the top of the homepage.)

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).

Pennsylvania Judge charged over retention election “recommendation”

The Philadelphia Judicial Conduct Board filed disciplinary charges in late October against Common Pleas Judge Thomas M. Nocella.  The charges alleged he violated the state’s code of judicial conduct.  (Philly.com stories here an here).

The Pennsylvania Judicial Conduct Board press release is here.  The complaint is attached.

In November, he was suspended, and according to his lawyer, that was before he had any opportunity to respond to the charges.  (Story here).

Here’s the interesting part.  According to Philly.com, Judge Nocello is accused of misrepresenting his qualifications to win a city bar association recommendation for judicial election.  He is alleged to have omitted certain lawsuits involving him from the list.

Nocella is alleged to have violated Canons 7B(1)(c), and 2A.

2A is:

CANON 2: Judges should avoid impropriety and the appearance of impropriety in all their activities.

A. Judges should respect and comply with the law and should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

In essence, Nocella is accused of not respecting the law and his obligations.

Under CANON 7: “Judges should refrain from political activity inappropriate to their judicial office.”  Canon 7B(1)(c) appears to be new, and requires judges for judicial officer, including incumbent judges, should not misrepresent their qualifications.

It would be interesting to know when this was added (it is not in the version of the judicial code that is still on the Board’s website), and whether it was added so these charges could be brought against Nocella.

Those of you interested in process will note that he has only 30 days to file an “omnibus” motion (there is no acknowledged process for an omnibus motion in Minnesota disciplinary matters, so acknowledgement of one is good, but preparing one in 30 days seems like a rush).

The judge has the right to an evidentiary hearing.  If clear and convincing evidence is found, he has a right to a separate “sanctions” (like a sentencing) hearing to decide what discipline should be levied.  This is important for due process.  In Minnesota, the lawyers get only one hearing, which has led to impermissible melding of accusations (and denials of same) with sentencing (and the notion the lawyer should receive greater sanctions because of the denials to the accusations).

Philly.com mentioned Nocella being close to U.S. Rep. Bob Brady.  Brady’s website says he “has been a leading advocate for election reform.”  There’s nothing about Brady in the formal charges, and it’s hard to know what role that plays, if any.