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MEETING SUMMARY
Committee on Rules of the Board on Judicial Standards
June 8, 2007
Persons Present:
Hon. Paul Anderson Sen. Tom Neuville
Sen. Don Betzold Hon. Gary Pagliacetti
Felicia Boyd Amy Rotenberg
Hon. Tanya Bransford Patrick Sexton
Hon. Edward Cleary Rep. Steve Simon
Annamarie Daley Dane Smith
Hon. Sam Hanson Rep. Steve Smith
Karen Janisch Hon. William Walker
Jeff Johnson Bill Wernz
Jeremy Lane DePaul Willette
Cmdr. Bill Martinez Hon. Bruce Willis
Sharon Mohr
Persons Absent:
Robert M.A. Johnson Virginia Stringer
Hon. Leslie Metzen
Court Services Staff Present:
Kelly Mitchell
I. Next Meetings
The next meetings of the Committee on Rules of the Board on Judicial Standards will be:
Friday, July 20, 2007
10 a.m. to 1 p.m.
Location TBD
Friday, August 10, 2007
10 a.m. to 1 p.m.
Location TBD
II. Meeting Summary
1. Introductions. The Chair, Judge Pagliacetti, welcomed the committee and asked members to introduce themselves.
2. Statement of the Charge. Judge Pagliacetti informed the committee of the charge as stated in the establishing order issued on April 3, 2007: “review and recommend proposed changes to the Rules of the Board on Judicial Standards.” Judge Pagliacetti also explained the difference between the Code of Judicial Conduct and the Rules of the Board on Judicial Standards. The former govern ethical considerations and behavior that could undermine the impartiality of the judiciary. The latter govern the complaint and disciplinary process for violations of the Code of Conduct. This committee is charged with addressing the Rules of the Board on Judicial Standards. There is currently another active committee reviewing the Code of Judicial Conduct.
3. Historical Overview of the Board on Judicial Standards. Justice Paul Anderson presented an historical overview of the Board on Judicial Standards. Referring to a handout included in the meeting packet, Justice Anderson presented a timeline of judicial disciplinary efforts in Minnesota culminating in the process in place today, referred to charts showing the annual number of judicial and public telephone inquiries, and showed statistical information indicating that complaints as a percentage of case filings have decreased since 1992. Justice Anderson commented on the unique posturing of the Board: the Constitution grants the Legislature authority to provide for the removal, retirement, or discipline of any judge, legislation creates the Board and establishes that the members will be appointed by the Governor and directs the Supreme Court to promulgate rules to implement the statute, and the Supreme Court promulgates rules governing the procedures of the Board. Thus, responsibility for judicial discipline is shared across all three branches of government.
4. Overview of the Rules of the Board on Judicial Standards. Kelly Mitchell presented a summary of the Rules of the Board on Judicial Standards, which included both a short explanation of rule content as well as a walk-through of the chart in the meeting packet detailing the complaint process. Members raised a number of questions about the rules. Some of the points that came out of the discussion were: 1) there is no requirement that the Board meet with a judge who is the subject of a complaint, but it sometimes does; 2) though complaints are confidential until subject to a public hearing, there is nothing to prevent a complainant from taking the issue public; 3) the filing of a complaint against a judge does not create grounds for disqualification in a pending case; for that reason, the judge is not notified of the complaint until the initial evaluation has been completed; the judge will only be made aware that the complaint has been dismissed without action if the judge knew about the complaint; 4) it is unclear in the rules whether Board decisions require a majority of the Board or majority of a quorum; 5) it is unclear what would happen if the Board agreed there should be discipline but could not agree as to what type of discipline should be imposed; 6) the records of the Board have not been destroyed within the records retention timeline provided by the Rules and may be vulnerable to subpoena.
5. Notes and Suggestions from the Office of the Supreme Court Commissioner. Rick Slowes presented information regarding gaps in the Rules relating to mental health revealed in recent cases before the Board and the Supreme Court (e.g., Ginsberg). He stated that the gaps he identified are for the committee’s consideration. Some may be appropriately left to the Court to decide. Some of the gaps discussed were whether interim suspension is appropriate when mental health is at issue, whether the governor’s granting a disability retirement ends the proceedings at the Supreme Court, and whether there are any actions available to the Board for a nonpermanent disability. The full set of issues is included in the handout prepared by Rick Slowes and included in the meeting packet.
6. Suggestions for Change in the Rules from the Board on Judicial Standards. Judge James Dehn, Chair of the Board of Judicial Standards, and David Paull, Executive Secretary of the Board of Judicial Standards addressed the committee. Judge Dehn noted that though there are 2.1 million files initiated in the courts each year, the Board receives very few complaints in comparison. David Paull explained that the committee was formed at the request of the Board. The Ginsberg decision presented a unique situation in which a judge presented mental disability as a defense to charges of personal conduct. That had never happened before, and there were no rules to address it. The Board submitted proposals to the Court to address both mental disability and the private reprimand process.
David Paull addressed the committee with comments regarding the Rules and operations of the Board, which he summed up in five words: access, fairness, protection, independence, and perspective. With regard to access, the Rules make it extremely easy to submit complaints; the Board accepts letters and phone calls, and no particular format or procedure is required. With regard to fairness, the subject of the complaint has several formal opportunities to provide a response, and has the right to a full and formal hearing. With regard to protection, the confidentiality built into the Rules protects judges from invalid complaints, and keeps the majority of complaints out of the media, thereby reducing copycat complaints. With regard to independence, David Paull commented that the independent structure of the Board promotes good decisions. With regard to perspective, he noted that the Rules should be viewed not as a law enforcement mechanism, but as rules of employment. In addition, he noted, it must be remembered that it is not a violation of the Code of Judicial Conduct to rule incorrectly. It is the role of the appellate system to correct those errors.
Finally, David Paull closed by suggesting to the committee that a successful approach would incorporate these considerations: 1) whether the proposal preserves public access and sufficient opportunity for the subject of the complaint to respond; 2) whether the proposal preserves the independent atmosphere of the Board; and 3) whether the proposal asks the Board to go beyond its mission to delve into matters that do not concern personal conduct, but rather would require the Board to review procedural or legal determinations.
Several members had comments in response to this presentation. Comments included concern that the confidentiality built into the process makes it difficult to impossible for the Legislature to effectively oversee Board operations, to confirm Board members, and to establish an appropriate budget. Members expressed a desire to see some of the case files of the Board, and asked how the committee can do its work if it is unable to see how the process works. Members also noted that the budgetary structure whereby the Board is required to ask the Legislature for a special appropriation in order to litigate a case interferes with the independence of the Board.
7. Minnesota District Judges Association Recommendations. Judges Charles Porter, Ken Jorgenson, and Marilyn Kaman presented recommended changes to the Rules approved by the Minnesota District Judges Association (MDJA) Board of Directors. Judge Porter explained that the MDJA is an association with two goals: 1) to act as a judges’ union; and 2) to promote judicial education. Judge Porter then presented the MDJA recommendations. He stated that the primary function of the Board should be to provide advice to judges; that is, to advise judges as to the proper course of conduct before they make a mistake. However, that function does not meaningfully exist today because recent cases have negatively affected the comfort level of judges in utilizing that service of the Board.
Judge Porter covered three thematic areas of concern for the MDJA: 1) the integrity of the process that occurs before the Board; 2) confidentiality; and 3) due process and fundamental fairness. With regard to integrity, the MDJA made three recommendations. First, divide the prosecutorial and adjudicatory functions of the Board. This will result in one position that is the prosecutor and another that is the staff member of the Board. Second, ensure that the Board is adequately funded so that disciplinary decisions are not made based on whether or not they can be funded. Third, make at least one staff position on the Board a judge. This will engender confidence with the public and ensure the person in the position has the necessary experience to evaluate complaints. With regard to confidentiality, the MDJA’s chief complaint was that, unlike legal disputes that come before the courts, because all proceedings before the Board are confidential, there is no ability to research the Board’s actions, no access to prior decisions, and no basis for a lawyer to give competent advice to a judge as to how to proceed. The MDJA suggested that the identity of the complainant should be disclosed in every case in which the judge is asked to respond, the judge should be entitled to a defense prior to the public hearing stage, and the judge should be entitled to know whether any members of the Board have recused themselves from the decision making process. With regard to due process and fundamental fairness, MDJA’s suggestions included that there should be discovery at the private as well as public stages of the proceedings, the Board should not be able to substitute its findings for that of the fact finding panel, and the issue of whether a majority of the quorum or a majority of the Board is required should be resolved. Judge Porter stated that the concerns about confidentiality and due process and fundamental fairness have had a chilling affect on judges asking for advice. The MDJA suggested that the Board needs to fix its procedures so that it can get back to the purpose for which it was created.
Judge Jorgenson commented that the current rules follow the old model whereby the Board has the ability to substitute its own findings for that of a fact finding panel. The new model places a constitutional judge in the role of the fact finder and sets up the Board as an advocate in the prosecutorial process. He also stated it is important to remember that judges do not have Fifth Amendment privilege and must cooperate in the investigatory process. As such, the judge should have access to the basis for the complaint and the Board should create a better investigatory fact finding process. If a judge asks for a hearing, prior discipline becomes an issue so there should be a rule regarding admissibility of prior discipline. When asked what weight the findings of the fact finder should have, Judge Jorgenson stated “clearly erroneous.” He also stated the MDJA recommends that once a case reaches the public hearing stage, the Board should be an adversary in the action, not a decision maker.
Judge Kaman commented that in making these recommendations, the MDJA attempted to be fair. She noted that the hearing process is imbalanced in that the judge is not given an opportunity to respond to the complaint or engage in discovery until very late in the process.
When asked who should have oversight of the Board, Judge Porter answered that it depends upon the Board’s purpose. If the issue is whether judges are doing a good job for the public, the public should have oversight. If the issue is whether the judges are meeting employment standards, the judiciary should have oversight.
Citizen Comments
. The committee then heard comments from three citizens attending the meeting: Tim Kinley, Elizabeth Sletten, and Nancy Lazaryan. Tim Kinley informed the committee that there are other citizens who are interested in attending meetings who are unable to attend daytime meetings due to their work schedules. He requested that the committee hold at least one meeting in the evening so others will have an opportunity to address the committee. Tim Kinley then commented that the judiciary is one place where blue sky is not happening. He is concerned that the system lacks checks and balances, and he questioned how two opinions from the appellate courts could cite the same rule but have radically different outcomes. He questioned the practice of the Court of Appeals in releasing unpublished opinions. He also stated that the Board on Judicial Standards is like a black hole; complaints go in but no one knows what happens to them. He expressed strong disagreement with the formation of this committee and stated that the meetings should be cancelled and the issue taken up by the Legislature.Elizabeth Sletten commented that in 2005 she submitted a complaint to the Board consisting of 200 pages (an 8-page cover letter and 192 pages of evidence). She stated her complaint showed the judge was acting improperly in his handling of the case. She asked, if judges are acting outside of the rules and laws and that is not misconduct, what is? She closed by reading a one-page response from the Board stating no action would be taken on her complaint.
Nancy Lazaryan commented that the Constitution gave the power to the Legislature to regulate, discipline, and remove judges; even though Chapter 490 delegates rulemaking authority to the Supreme Court, it is her view that authority cannot be delegated. She stated the Board has failed miserably in serving the citizens of Minnesota. Nancy Lazaryan cited some examples of misconduct, including misconduct that prompted her to file a complaint of impeachment with the Legislature. The Legislature referred the matter to the Board and she received a response stating the complaint had no merit. She stated she has no respect for the Judiciary.
