Proposed Minnesota Judicial Reform 1 of 2

In two previous articles I wrote regarding the formation of TEA Party Transparency, Accountability andReform (TAR)group. In another article, I wrote about some suggested readings to understand the extent of the problem of judicialcorruption in Minnesota.

This document represents 5 years of drafting and redrafting of individual proposals to address specific area of reform, many of which were contained in the last bienniums bill HR 1632 Minnesota Judicial Reform and Accountability. This is the current iteration of one avenue of Judicial Reform that TPTAR's Judiciary committee is pursuing. I caution my fellow Minnesota Citizens that we will need your support. The Judges, Lawyers, Bureaucrats and other elected officials profiting from the current corrupt system will not give up their power without a fight. "All that is necessary for the triumph of evil is for good people to do nothing" Edmund Burke

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PROPOSED GROUPINGS FOR JUDICIAL REFORM BILLS

Group 1 -         Judge Performance and Candidate Qualification Board Public Financing of Judge Election Campaigns at no cost to taxpayers Right of Citizens to get a grand jury investigationRight to criticize judges; retaliation prohibited Enforcement of penalties against by a pay cutoff

Group 2 -         Prohibition on gratuities for judges and judicial branch employees Judge elections by vote of the people Code of Ethics for the judicial branch of government Lawyer Oversight BoardNew lawyer licencing and bar examination board

Group 3 -         Requirement for judges to follow the Constitution and the law Requirement for judges to follow the rules of procedure Prohibition on tampering with transcripts and the evidence Decisions by elected judges only Certification of decisions and orders by judges

Group 4 -         Judge accountability - Judge Oversight Board Common Sense Board Rule of Judicial Immunity abrogated Limitations on jailing a person in a civil proceeding without bail or a trial

Group 5 -         Prevention of wrongful termination of parental custody Meaningful visitation by a parent with his/her child; family conciliation court Attorney’s fees paid all or in part by the loser Court Administrator controlled court video and sound recordings

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Judge Evaluation Board - creates a judge evaluation system that provides for performance evaluation of judges by non-lawyer citizens with the assistance of lawyers and a staff who provide technical assistance, and provides for reports to voters before each election on each judge who runs to stay in office and on candidates who run to become a judge.

The bill:

           Creates a judicial evaluation system that consists of ten district citizen judicial evaluation boards, one for each of Minnesota’s ten judicial districts, and a statewide evaluation board for appellate judges.  The bill also creates a staff including lawyers that provides analysis and support services to citizen evaluation boards.  The agency will be managed by and report to the Minnesota Judicial Commission, which will report and be responsible to the Minnesota Legislature.  Each state representative and senator will have the right to nominate one judicial evaluator from his or her district.  The Minnesota Judicial Commission will select members of the evaluation boards from this pool of nominees.  Judges, lawyers, and employees of any unit of government will not be eligible to serve on evaluation boards.   

Comment

Over eight states have commissions that prepare performance evaluations of the work of incumbent judges and reports on the qualifications of candidates for judge and send reports of their findings to voters.  Some states include recommendations on whether an incumbent judge should or should not be retained in office or on whether or not a candidate for judge should be elected.  The procedure for selecting members of a judicial evaluation agency varies among the states.  We believe the evaluation of judges should be independent of the judicial branch of government to assure independence and give the results credibility with voters.

Minnesota’s judges, acting through the Quie Commission, also propose performance evaluation of judges.  There are similarities and differences between the system we propose and the system proposed by the judges.  Both proposals call for evaluations of how judges perform their jobs and reports sent by the evaluators to voters before each election on judges who run to stay in office.  Major differences are:

1.         The judges propose one 30 member evaluation board that consists of 15 lawyers and 15 non-lawyers.

Discussion: Our proposal is to create eleven evaluation boards, one for each judicial district, and a state-wide board.  None of the evaluators would be lawyers, judges, employees of lawyers, or government or court employees.  All would be citizens assisted by a professional staff. 

Under our proposal, lawyers are not eligible to serve on an evaluation board.  It is not realistic to expect lawyers to criticize a judge before whom he or she may appear.  That could destroy a career. 

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2.         The judges propose that all evaluators will be selected by just eight people - the seven Supreme Court Justices and the governor. 

Discussion: The judges in effect want to select their own evaluators.  They would likely select people whom they expect will give judges good reports.  This amounts to control over judges by the governor and Supreme Court.  A judge who criticizes the system, or issues a decision not favored by the Supreme Court justices or the governor might be deemed “not qualified” by the judge-appointed evaluators.     

The judges want the evaluation board they propose to report to and be funded by the Judicial Branch of state government.  This will give the judicial branch power to dominate the evaluation board.  We propose that the evaluation boards be part of a unit of government that reports to the legislature.  This is consistent with Minnesota’s Constitution that gives the legislature the function of disciplining the judiciary.  We propose that evaluators be nominated by legislators.

.3.         The judges propose that reports of evaluation boards be limited to “qualified” or “not qualified.” Discussion: We propose that the content of reports by evaluation boards be left to the discretion of the Minnesota Judicial Commission.

Judge Accountability - Judge Oversight Board

The bill:

•           Makes judges accountable for intentional or knowing wrongdoing or gross negligence in the performance of their duties such as not following the rules of procedure, failing to apply established law in the resolution of a matter, legislating from the bench, violating a statute, or committing an act of injustice.  The bill creates the Judge Oversight Board (“Board”) that would be a part of the legislative branch of government in the same manner as the Government Accountability Office is a part of the legislative branch of the federal government, and the Legislative Auditor and Compensation Council are part of the legislative branch of Minnesota’s government.  The board would be authorized to investigate citizen complaints against judges, conduct hearings, and assess sanctions such as fines, reprimands, and suspend, or remove judges from office.  The bill gives any person the right to file a complaint against a judge with the Board.  If a screening panel of the Board finds that there is a reasonable basis for the complaint, it will refer it to the unit of the Board that conducts investigations for further processing and possible prosecution and hearing before a panel of hearing officers.  The bill gives the Board authority to issue reprimands, assess fines, suspend the offender from office, and remove the offender from office.  The Board would not have the power to reverse or modify any court decision or order.  The judicial branch of Minnesota’s government would not have jurisdiction over decisions and actions of the Board.  Appeals from Board decisions would be to the Minnesota Judicial Commission.  Decisions on appeals by the Judicial Commission would be final.  

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Comment.  Judges can and some do abuse their power, ignore the law and ignore court rules, without any liability or consequence.  Judges can refuse to act justly, intentionally hurt a person or business, wrongfully deprive a parent of the custody of a child, or even jail a person without good cause and without the right to bail and not suffer any consequence if the court has jurisdiction over the person. They have close to absolute power in their courtrooms.  As is well known and proven, power corrupts.  The corrupting effect of unlimited power is brilliantly explained in an essay by law professor David Barnhizer.  The essay is entitled: “‘On the Make’: Campaign Funding and the Corrupting of the American Judiciary.” (Catholic University Law Review, volume 50, page 361 (2001)) Judges have too much power.  As demonstrated by the collapse of our country’s financial system, allowing an institution to be irresponsible and failing to regulate it leads to disaster.  If we give judges unlimited power to do what they want, right or wrong, and fail to control their excesses, we risk a meltdown in the credibility of our legal system.

Common Sense Board – creates a board that evaluates unjustified decisions and actions by judges and judicial officers and widely publicizes them; publishes a judicial system guide; operates an information center

The bill:

            Creates a state-wide common sense board (CSB) with regional offices throughout the state.  Any person who believes a judge or judicial official committed an irresponsible act would have the right to file a complaint with relevant documentation and information with a regional office.  If the decision, order, or act that is the subject of the complaint is found after an investigation to lack a reasonable basis or rational justification, the CSB will widely publicize a description of the decision, order or action in newspapers, on radio, on television, and in other media including public and commercial media with the name and title of the individual or individuals responsible for the decision, order or action.  The CSB would not have the authority to reverse or modify any decision, order or action or their application.  The CSB also will publish a Judicial System Guide and maintain an information center to inform people (but not provide legal advice) on legal system matters including the names of and information on lawyers who are licensed to practice law in Minnesota and who have committed to providing quality services to clients.

Comment:

Decisions, orders and actions that lack a common sense basis or rational justification should be widely publicized to embarrass the perpetrator and discourage such conduct. An enraged public could vote offending judges out of office.   Publication of these cases will serve as an incentive to avoid such actions. 

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Financing and conduct of judge elections – provides public financing of judge election campaigns at no cost to taxpayers; limits campaign contributions; provides incentives for judge candidates to run on a nonpartisan basis and abide by a code of campaign ethics.

The bill:

•           Provides public funds to candidates for judges and incumbent judges who seek re-election if the candidate or judge agrees to restrictions on campaign financing, spending and practices.  To be eligible for public funds, a candidate or incumbent judge must agree: (1) not to accept any contributions for his or her general election campaign from any source other than public funds from the state; (2) not to spend over a specified limit except for “rescue funds” as permitted by the rules; (3) to run nonpartisan without party designation or endorsement, and (4) to comply with campaign ethical rules such as not announcing how the candidate would rule on a particular issue or in a particular case.  The proposed law bars judges from appointing a person who contributes more than a specified amount to the judge’s primary election campaign to any position such as trustee, chair of a commission, etc., that pays more than a nominal remuneration. 

Comment:

The proposed law is modeled on the highly successful 2004 North Carolina law.  In many states, including Minnesota, judges have sold their decisions in court cases for campaign contributions.  The corrupting effect of contributions to judge campaigns is the subject of law professor David Barnhizer’s essay, “‘On the Make:’ Campaign Funding and the Corrupting of the American Judiciary.”  In his essay, Professor Barnhizer notes the generally overwhelming desire of judges to keep their positions of power and authority at whatever cost, which includes doing what is necessary to raise campaign funds when they are challenged in an election.  To get the funds they need, judges often reward major contributors with favorable decisions or appointment to good-paying positions such as referee or commission chair or member; promise in subtle ways to rule in favor of a special interests’ goal; promote a particular political view; and in other ways win the support needed for election.  The essay proposes many measures to control and possibly eliminate the corrupting effects of the need for judges to raise campaign funds.  The North Carolina law, which implements many of Professor Barnhizer’s proposals, and many proposals of the American Bar Association, has succeeded in virtually eliminating the corrupting influences of large law firms, wealthy lawyers, special interests, political parties, corporate moguls, and others in judicial elections.  This law is discussed in Dale Nathan’s book, Minnesota Injustice, and in several websites.

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Judge Ejections by vote of the people as provided in Minnesota's Constitution

The bill:

•           Provides for election of judges by the people; it discourages resignations by judges under circumstances that allow the governor to appoint his or her successor.  Judges will be on the ballot only in the county or counties to which they are assigned.  The identification of "incumbent" is eliminated. 

Comment

Minnesota’s Constitution states: "Judges shall be elected by the voters."  (Article 6, Section 7). In practice, judges generally are selected and appointed to office by the governor.  This is an unintended result of a statute that requires a judge to retire from office after he/she reaches a designated age.  The current law requires that a judge retire from office on the last day of the month when he/she reaches the age of 70. Because they are required to do so, judges retire when they reach the mandatory retirement age, which creates an immediate vacancy.  The governor, as he/she is authorized to do by Minnesota’s Constitution, appoints a replacement.  As also provided in the Constitution, the appointed judge serves for at least a year and may run for office at the next general election.  In practice, the result is that almost all new judges are appointed by the governor.  These appointed judges then run for a full term one or two years later almost always as the unopposed incumbent.  Thus, the people do not elect their judges as the Constitution intended.

Most judges oppose the mandatory retirement age of 70 because this directly affects the amount of their pension.  A judge must serve 20 years to get the maximum pension available.  Because most are appointed judge after the age of 50, they must retire before completing 20 years of service.  Judges want the mandatory retirement age extended as shown by a proposed law, S.F. 2615, co-authored by Senator Mee Moua and Sen. Warren Limmer, in the 2009-2010 legislative session that would have extended the judge mandatory retirement age to 75 years.  This proposed law did not make it to a hearing.

On the other hand, most judges want to be appointed to office rather than be elected to office, and, of course, the governor wants the power to appoint judges for political purposes.  Accordingly, judges and the governor defend the practice of appointing new judges rather than allowing them to be elected.  The usual rationale given by the governor and judges for the evasion of Minnesota's Constitution is that voters are too uninformed and are unqualified to select judges, even if they are allowed to select the president, the governor, their legislators and almost all other political office holders.  The truth is that voters can select good judges and often have done so as shown by their selection of the following judges, all of whom were elected by the people: Carol Hooten, Michael T. DeCourcy, John T. Finley, Margaret M. Marrinan, Judith M. Tilsen, Robert R. Benson, Gerald J. Wolf, Susan N. Burke, Mary S. Dufresne, Patriciaa K. Karasov, Janet N. Posten, Thomas W. Wexler, Mark A. Munger, Frederick J. Casey, David F. Harrington, John R. Hawkinson, John G. Melbye, Paul E. Rasmussen, Thomas G. Armstrong and Susan R. Miles.  The truth also is that the governor wants the power to select judges for political purposes, and that people who want to become a judge prefer the political process over facing an election.

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The issue of the best way to select and retain judges is the subject of a 2009 book by two political scientists, In Defense of Judicial Elections by University of Michigan political scientists Chris W. Bonneau and Melinda Gann Hall.  Their book concludes that judges should be elected, not appointed.  The book discusses Minnesota's struggle over this issue.  The book can be ordered ($30) through Barnes & Nobles or Borders.  A copy of this book is at the U of M library.  The authors methodically and objectively examine the arguments of legal system reformers that appointed judges are superior in quality and competence, more objective and independent, freer from special interest influence and control, and freer from political pressure than elected judges.  Based on their analysis, the authors conclude: "Instead of lacking the capacity to fulfill their very basic function of accountability, judicial elections are highly efficacacious institutions of democracy that in many ways serve as the prototype for what state elections should be in the United States.  . . .  Given a choice between citizen control of the American state court bench and elite control that serves to constrain the exercise of judicial review   . . .while protecting arrogant and incompetent judges, we think the better choice is obvious.  Similarly, we think the nation would be better served by ending nonpartisan elections and the Missouri Plan, both of which impede the democratic process and exacerbate some of the most potentially negative consequences of judicial elections.  In sum, partisan elections are a highly effective mechanism for selecting state court judges."  (page 139)       

The situation in Minnesota that leads the governor appointing most judges is easily correctable.  A Minnesota statute, § 490.121, subd. 21d,  requires that a judge retire the last day of the month when he or she reaches the age of 70 years.  Also, it is known that judges typically retire when he or she completes 20 years of service as a judge because this enables the a judge to collect the maximum pension for a judge.

The solution is a modification of Minnesota statute § 490.121, subd. 21d to change the mandatory retirement of a judge to December 31 of the year of a general election after a judge reaches a specified age.  The current age in the statute we refer to is 70 years.  We propose the age of 72 years.  Regardless of the age specified, the effect of this modification is that if a judge retires on the last day of the year of a general election, his or her  successor will be chosen by voters in the election that year.  We propose two additional measures to assure that judges retire under circumstances that result in election of that judge’s successor by the people.  The first is a law that a successor to an incumbent judge will be elected in a general election unless the incumbent judge commits in writing by May 1st of the election year that he or she will continue to serve as judge until the end of his term except that the judge may retire for compelling physical or personal reasons, or because the judge was elected to a higher court.  The second measure is that a judge will forfeit twenty-five percent of his or her pension if he or she retires under circumstances that enable the governor to appoint his or her replacement, unless the judge retires for compelling physical or personal reasons, or was elected to serve on a higher court.

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When adequately informed, voters generally make good choices.  As important is that judges elected to office by the people owe their allegiance to the people, not to the politician who appointed them.  The validity of these statements was demonstrated by the competitive election of a new judge in Ramsey County in November, 2008.  John T. Finley, a Ramsey County judge, announced in 2008 that he would retire at the end of his term rather than wait for his 70th birthday.  This resulted in the election of his successor by election.  The people selected two outstanding candidates in the primary election, Gail Chang Bohr, the director of a children’s legal services center, and Howard Orenstein, a former legislator who served in the Minnesota House of Representatives for many years.  The campaigns of the candidates were dignified and responsible.  In a close election, the people selected Judge-elect Bohr.  Her career shows that she is a person of the highest ability and competence who is likely to be completely objective in her work as a judge.  And, she owes her selection as judge to the people, not to the governor.  

Currently, judges are elected by judicial district.  An incumbent judge is identified by the word "incumbent” under his or her name.  Judicial districts either are very large in area or serve a large population.  The result is that ballots typically list a large number of judges most of whom are not known to voters who live outside the county or counties to which a judge is assigned.  There is no logical reason for this.  Judges should run in the areas they serve where voters are likely to know about the judge's rulings and conduct. 

Identifying a judge as an "incumbent" gives him or her an advantage over a challenger.  It is rare for an office holder such as governor, legislator, or almost any other office holder to be identified on the ballot as the incumbent.  Judges should not have an advantage.  If they want voters to know they are the incumbent, they should campaign and make themselves and their records known to the people.

Prohibition on gratuities judges and employees of the judiciary can accept

The bill:

•           Restricts gratuities judges can accept.  It establishes the same limitations on gratuities judges and employees of the judicial branch of government can accept as are applicable to legislators and employees of the legislative and executive branches of government. 

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Comment

Under a rule issued by the Minnesota Supreme Court applicable only to judges, judges can take an unlimited number of gratuities of up to $150 each from lawyers, special interests and others.  The rule is Canon (Rule) 3.13(B)(11).

The rule is contained in the Code of Judicial Standards.  It is very convoluted.  In simplified form, the substance of the rule is that a judge can accept:

(11) any other gift, loan, bequest, benefit, or other thing of value with a value not exceeding $150, if the source is not a party or other person who, directly or indirectly, has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge.

The rule further provides that such “gifts” need not be disclosed to anyone.  They can be hidden.  It is unlikely that judges report gratuities as income or pay income taxes on the value of these gifts.  If judges are not taking “gifts” (gratuities) then Canon (Rule) 3.13(B)(11) is unnecessary and can be rescinded.

The United States Supreme Court ruled that it is unconstitutional to buy a judge’s decision with campaign contributions.  Doesn’t that principle also apply to buying judges with gratuities?

You can see this rule on the internet.  Go to Google.  Type in “Minnesota Code of Judicial Conduct.” and click on the first item listed.  Then click on "Code of Judicial Conduct."  Go to page 36 and read (B).  It states: "A judge may accept the following without reporting such acceptance."  Subparagraph (11) on page 37 states: "Any other gift . . . with a value not exceeding $150."

Many law firms, particularly large law firms, appoint one of their attorneys as the “DE” (designated entertainer).  This person does not appear in court.  He or she wines and dines judges.  The giving of a gratuity by one member of a firm does not disqualify other lawyers in the firm from appearing before the judge who accepted the gratuity. 

Legislators and employees of other branches of government are not allowed to accept $150 gratuities especially from lobbyists.  Judges should be subject to the same restrictions.

The average citizen considers $150 tips for judges to be bribes - big bribes because judges can take as many $150 tips per day as they want.  The rule that lets judges take big tips creates a very bad image and is very bad public policy. 

The legislature should pass a law that places the same prohibitions on judges with regard to gratuities as applies to legislators and other employees of state government.

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THIS ARTICLE CONTINUED IN Proposed Minnesota Judicial Reform 2 of 2

Those were my thoughts.

Don Mashak

The Cynical Patriot

http://twitter.com/dmashak

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