Tag Archives: Minnesota Judicial Standards Board

Conroy removed – was a bench warrant issued AFTER removal?

Below is a copy of the notice of removing Lois Conroy, signed by Trisha Farkarlun and provided to the Court 4/25/13.  It was never explained why Judge Alexander, who apparently stated from the bench that it was her case, would have been removed by Administration, and Conroy put on the file.  Why it is that members of the public are told they only have one removal (even if 20 judges are assigned – by virtue of Hennepin County ‘policy’) but Court Administration, which is not even a party, removes judges all the time – apparently any time they want.  This is not ok.

Notice the handwritten note,

“Hennepin [County court] does not have jurisdiction, I am filing this because I have great fear of appearing in front of her.”

Even if Hennepin County Court had jurisdiction after Farkarlun’s conviction was REVERSED in 2010, Conroy surely did not have jurisdiction after the notice of removal was filed.

What is going on?

Your Public demands answers to the following:

1.  Why was Alexander removed?  Who made the decision?

2.  Why was Conroy put on?  And why such late notice?  I am specifically asking whether the switcheroo was because of the removal papers.

3.  Did someone testify under oath in favor of a bench warrant?  What facts supported probable cause that a crime had been committed?  I cannot imagine that there are any.  Was the warrant just a MnCIS entry?  And if so, who made the computer entry Why can’t I look at MnCIS and tell what human being will stand by this warrant?

Minn. Const. Art. 1, sec. 10

Sec. 10. UNREASONABLE SEARCHES AND SEIZURES PROHIBITED. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

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Judicial Misconduct Dictionary: Minnesota Code Of Judicial Conduct

Minnesota Code of Judicial Conduct.

The Minnesota Code of Judicial Conduct was revised in 2008 (effective July 2009, and amended January 2011).

The revised Code is based on the American Bar Association (ABA) Model Code of Judicial Conduct.

The Minnesota Code is available on the Minnesota Judicial Branch website and the Minnesota Revisor of Statutes website, easy access here.

Solution #4: Provide More Information To Minnesotans Who Complain About Judges

“We have too many high sounding words, and too few actions that correspond to them.”

Abigail Adams

Our Minnesota Board of Judicial Standards’ function in the District of Columbia is called the District of Columbia Commission on Judicial Disabilities and Tenure.  The Commission investigates complaints filed by people who are displeased with the performance of DC judges.  Like Minnesota, the review process is confidential, and those who file complaints often don’t know what happened, or why the matter was dismissed.

Like in Minnesota, the DC Commission has “standard” letters it sends to members of the public when their complaint is dismissed.  Like in Minnesota, these often say that the issue should have been appealed in the case itself (meaning rather than making a complaint that the judge violated his or her ethics).  I don’t know much about the DC Commission, but based on what I’ve seen in Minnesota, it’s far too easy to purposely read the ethics complaint to be about an issue in the case, and just chuck it out, issuing the standard “you should have appealed” letter.

I am a sophisticated user of the Judicial Standards Board.  I have filed a number of complaints, I am a lawyer, I am studied in the law of judicial ethics, and I know what I am doing.  When I started to notice form letters being sent that the Board thought it was an issue that should have been raised in the case, I knew something was wrong.

First, the same issue can be a legal one for the case and an ethical one. Let’s take an easy example.  If a judge in a criminal case has an ex parte communication with a prosecutor (like happened in State v. Schleinz and the court found it improper), it can be raised in the case, because the Minnesotan could not get a fair judicial decision without raising the issue.  But it is also an ethics issue.  Both can be pursued by the member of the public.  The issue is properly pursued in both silos.  And, it’s the Minnesotan’s choice.  No “form” letter stating it should have been raised in the case is sufficient to protect that judge from an ethics investigation.  And attempts to do so are suspect.

Second, I have found that in Minnesota, I have wholeheartedly disagreed with the analysis memorialized in these form letters.  That is, I just don’t buy it that the issue could only be pursued in the case, and that it had no merit as an ethics complaint.   And I have suspected that the form letter is just a dumping ground for the JSB.  It’s just another way they say, “hey, you, member of the public, we are not going to take you seriously.”

Third, the JSB does not give Minnesotans any opportunity to address questions raised by the Board, positions taken by target judges, or preliminary assessments (for example, that it is an issue that should have been raised in the case).  Why would that be?  In the lawyers board process, once the target lawyer responds, the complainant is given an opportunity to file additional facts, documents, and explanation.  Why would judges, public servants who have great power to harm citizens why they misbehave, have the last word in the JSB process?  Why is the complainant aced out?

Until we as complainants know more we won’t be able to fix the problem.

The District of Columbia Council’s judiciary committee is considering providing more information to those who complain about the conduct of judges.  For example, the Commission is going to discuss revealing more to complainants about why the complaint was dismissed or the extent of the investigation.

A DC blog reported that confidentiality is designed to protect the identity of the complainant, because complainants can be lawyers.  Story here.

It appears that this was meant to imply that retaliation could occur if the lawyer’s name is released to the target judges.  I don’t buy this is the reason for confidentiality.  My experience in Minnesota is that someone at the JSB is that someone leaks the information to the target judge about who complained.  When I made a complaint to the JSB in 2006 about a Hennepin County Judge, it was faxed directly to the judge.  The fax legend at the top of the page?  “Judicial Standards Board.”  Not only was I not told that my written complaint had been faxed to the judge, I was affirmatively misled to believe it had not.  This is unacceptable.

When a client of mine filed a complaint in 2011, the JSB told the judges about the complaint, and never warned us that they were telling them.  So much for confidentiality protecting us.  Then, according to target judge Lloyd B. Zimmerman, he was permitted to wait to respond to the JSB until he had filed a judicial order in another case.  (I have the documents and transcript to prove all of this.)  Then, he sent his judicial order in that case as his “response” to the JSB.  This is appalling.  If what Judge Zimmerman said is true, that means the JSB affirmatively allowed this Judge to taint the case of a client with a writing that was designed to protect himself.  That is sooo opposite of what we expect of that agency.  And the JSB says it is about protecting the public?  C’mon now.

Don’t tell us confidentiality is for our protection if that’s just another way to placate.  Don’t give us the prefab PR reason, speak to us as if we matter.

And don’t send us form letters telling us you dismissed it because we should have appealed it in the case.  Don’t make up excuses for failing to do your job.  Don’t trick non-lawyer members of the pubic into thinking they did not complain “correctly.”  Don’t work hard to dismiss complaints.

JSB Director David Paull recently told me (when I called him, once again disappointed with the JSB) that everything the JSB can do can be achieved in court.  That’s flat out false.  Court activity and the JSB are like two separate silos on the same farm.  The grain never moves from one silo to the other one.  They are completely separate systems.

The court/appellate courts rule on the case itself.  They are in one silo.  But the courts cannot suspend a judge, cannot require a judge to take disability leave, cannot put a judge on probation and monitor his or her conduct.  That is a completely separate silo, and Minnesotans are not wrong for bringing their plight to the JSB and expecting that something will get done.  I am not willing to trust a system that can’t even tell the public the truth, to be the guardian of integrity and uprightness.

So let’s start by having more transparency in the process.  Give the complainants real information about what is happening.  Plug the leaks (even if that means investigating yourselves), warn us if you are going to officially notify a judge, and then let us know at the end what happened.

Solution #2: Transparency

Solution #2 is more transparency.

More transparency is good for the judiciary.

Sometimes, members of the public are concerned that something bad is going on in secret behind the scenes in the courts.  And sometimes something bad is going on.

But often something bad is not going on.  But the fact of the secrecy creates the perception that there is something to hide.  Shifting the policies underlying the judicial branch toward transparency and away from secrecy would enhance the public’s perception of fairness.  It would help litigants feel the case is about them and not about the judiciary trying to ‘protect its own.’

Of course, there is no excuse for covering up the bad things that are going on.  And the public should be trusted with that information, too.

In Texas, lawmakers are demanding access to records of the state agency that considers judicial misconduct.  Story here.

It appears from the story that the Texas Commission on Judicial Conduct is refusing to provide records to the Texas Legislature so that the Legislature can perform its review of that state department.  It’s not clear where that dispute will end, but there is beginning to be a demand for transparency regarding records about judges.

In Minnesota, the Governor appoints judges so frequently that a prior Governor set up a Commission to assist him in the appointments, and it continues to this day.

Sitting judges can use the prestige of their office to write letters of recommendation about a particular lawyer-candidate to the Governor/Commission.  These certainly seem like “endorsements” to me.  Whatever they are called, why would the public not be entitled to see these?

In the past, any attempt I have made to obtain information from the Minnesota Judicial Selection Commission about candidates for appointment to judicial office, has been either flatly refused, or simply ignored.

I haven’t even been able to find out where the meetings are, or when they are going to be held.

Why aren’t these meetings public?

Why can’t the public obtain copies of the materials that a person seeking appointment to the public office of judge has provided?  They are sent by public officials, including sitting judges and politicians (senators, congressmen, etc.).  And lawyer-candidates might be on the bench 20, 30 years.  Why is the public shut down when we ask about this?

As members of the public, we aren’t even told about the details of the process.  Do the candidates for appointment to judge meet with the Governor in a one-on-one meeting?

We’d like to know this, in part, because of the concept that judicial candidates for election to judge should not be discussing hot button issues, pending cases, or making pledges about how they will rule if a certain issue comes before them.  We’ve seen vigorous public debate about this concept regarding judicial elections.  But do candidates for appointment to judge talk about these things with the Governor?

How can the public even participate in the debate, if we don’t know?

Further, if sitting judges cannot use the prestige of their office to endorse candidates for election to judge, why are they regularly permitted to do so in the (secret) appointment process?  The notion that secrecy is better than transparency is challenged.

The commission process that I am discussing just above is different from the judicial misconduct commission in Texas.  But the issue is the same.  What is the basis for permitting the judiciary to keep information secret in this democracy?

In Minnesota, the Judicial Standards Board has certain procedural rules it must follow once a judge is accused of misconduct.  But there is much information that likely could be public.  Or at least delivered to the person who filed the complaint.  As it stands now, the complainant isn’t told what happened (or didn’t happen) to the target judge, and isn’t even given an opportunity to respond to any denial filed by that judge.  In that case, secrecy has a substantive impact:  the complainant may have documents or other evidence that shows the target judge’s denial should not be given credence.  But if the complainant is never told the target judge has responded, the complainant will not know to provide more evidence.

The rules are much different when a lawyer is accused of misconduct.  The complainant is kept informed about how the lawyer responds, and is given an opportunity to supply more information.  And the complainant is told about the outcome.  Why give judges, who are public servants, many of them elected officials, more confidentiality than lawyers?

Shrouding these processes in secrecy does not enhance the public’s perception of them.

Further, if there is going to be confidentiality, that should be a two-way street.  Target judges are not supposed to know who is complaining about them.   But it’s my perception that they are routinely told that someone has complained, and the name of the complainant.  That permits the target judge to ‘circle the wagons,’ and retaliate against the complainant.  I have not seen anything to suggest that the Minnesota Judicial Standards Board polices this issue, so the ‘leaks’ seem to continue.  This gives the public the downside of purported ‘confidentiality’ rules, but not the upside.

Solution #2 is more transparency.

What would happen if the Minnesota Legislature subpoena’d records of the Minnesota Judicial Standards Board in order to understand its history, or while discussing the creation of an impeachment process for judges?  How would the judiciary react?

What if Minnesota citizens wanted access to the judicial endorsements for appointment for judge?

It seems, at least based on past history, that the answer to these requests would be a flat “no.”  The judiciary (and the Governor’s appointment commission) might want to consider the message this sends to the public.

How Do We Turn The Battleship Around?

There’s an old saying, it takes 25 miles to turn a battleship around.  The notion is that the ship is chugging so strongly in one direction and it is so heavy that it will continue to head in that same direction, even after the Captain ‘turns the wheel’ to change course.  Twenty-five miles of ocean are required, it is said, to get the ship turned around and headed in the other direction.

This is used as a word picture when describing the time it takes to make big change in a big system.  The time is takes once the actions that will produce change have commenced, before seeing the evidence of change.  Twenty-five miles of ocean before things head in a different direction.

Many people know we need a change in the way the Minnesota Judicial Standards Board works.  Many people have believed this for years.

The Minnesota Supreme Court task force meetings and amendments regarding the substantive judicial canons (these are the ethics rules for judges) and the procedural rules for proceedings to discipline judges, occurred years ago (2008).  We are watching now, eyes focused on the sea, looking for evidence that the battleship is turning around.

We are real people, whose real lives are being harmed by wayward judges.  We want you to focus on us, not on protecting your own.

This should not be hard.  Here are some simple rules to follow.  Don’t decline to prosecute a judge because doing so may hurt a judge you like in the next election.  Don’t play politics like that with our lives.  And don’t prosecute a judge maliciously, motivated by wanting to hurt the judge in the next election.  Don’t misuse the system like that.  It’s got to be about the facts and the law, and it’s got to be about protecting us, the public (and not about you and your friends).

Members of the public have watched some change.  A couple of Minnesota judges have been suspended.  (I’ll post more about that later.)

But there have been other indicators that the ship is not turning around.  (And I’ll post more about that.)

But what about the Captain?  Can we turn the battleship around if we keep the same Captain?

Read how Washington County Judge Galler made a strong statement that he was wrongfully charged by the Judicial Standards Board, and that David Paull, Executive Director of the JSB for years, was at the helm and very much part of this when it occurred.  (By the way, Galler won his case.  This link  gets you to the JSB website, where at ‘News’ you can find Galler’s response to charges, and the decision that he’d won.)

Now it’s fair to ask whether Paull is the right Captain as we turn the ship around 180 degrees and head it in another direction.  Does he have the right stuff?

We, the public, need change.  We need the Judicial Standards Board to be real.  We need it to be about getting the bad judges, and not political attacks or fabricated cases on the good judges.

Can we turn the battleship around if we keep the same Captain?

We have our telescope trained on you and we are watching.