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Judicial accountability the right way

Judge Kevin S. Burke
Judge Kevin S. Burke

A Minnesota Supreme Court panel's recent exoneration of retired Judge Jack Nordby in a complaint filed with the Minnesota Board on Judicial Standards provides both a warning and an opportunity for Minnesota judges.

Nordby didn't just win his case. The findings are a striking rebuke of the board, which sought to discipline him [PDF] for comments he made about WATCH. The legal community followed the case closely, but it was just barely on the radar of the public. (In the interest of full disclosure, I was among those who testified before the panel.)

The background: WATCH is a nonprofit founded in 1992 to try to make the justice system more effective and responsive in handling cases of violence against women and children, and to create an informed and involved public. WATCH volunteers monitor court proceedings in Hennepin County while taking notes on their red clipboards.

Nordby and WATCH never got along well. In the past, WATCH successfully sought to bar him from certain judicial assignments, arguing that Nordby set bail amounts too low. Nordby countered that he followed the state constitutional requirement of reasonable bail. For three years after WATCH made the request to the chief judge, Nordby remained off the calendar for arraignments — when bail is set.

About a decade later, the conflict between Nordby and WATCH ignited anew when he read a statement to a defendant, Kris Hahn. Hahn was among the least sympathetic defendants. He had been convicted in federal court of possessing child pornography and sentenced to 20 years. Nordby presided over Hahn's state trial, where Hahn was convicted of criminal sexual conduct with a child. During the state proceedings Hahn sued Nordby, his own defense lawyers, the prosecutors and others for conspiring against him. At a hearing before sentencing, Nordby read in open court a statement to Hahn. The statement criticized WATCH and detailed the judge's conflicts with the group.

The panel found WATCH's advocacy against Nordby to be a threat to judicial independence.

We have now reached the stage where this community needs to call for WATCH to be replaced. Before the supporters of WATCH go apoplectic, no one should think it is time for the nonprofit to close up, the volunteers to disappear or the donations to dry up. No, the replacement should be this: The Minnesota judiciary needs to accept responsibility for getting judges honest, constructive feedback on a regular basis. The Minnesota judiciary needs to adopt performance measures that include a commitment that every litigant will be heard, will be treated with respect and will understand why the judge made the order issued. Minnesota has some very good judges, but the times dictate we need a renewed commitment to judicial excellence.

Seventeen states have judicial performance commissions. The commissions interview lawyers, staff and sometimes litigants. Utah is sending courtroom observers in to observe judges and see how they are performing. Minnesota does not systematically do this. The Quie Commission proposed a constitutional amendment to eliminate contested elections and also proposed creating a judicial performance evaluation commission. The purpose of judicial performance commissions is to inform the public whether a judge should be retained in office.

No state that has contested judicial elections, as does Minnesota, has a judicial performance commission for a very obvious reason. There is no way to conduct similar evaluations of challengers in contested elections. Judicial performance commissions are seen as an integral part of the retention election process and sometimes a part of improving the day-to-day performance of judges. None of the commissions, for example, work with a judge to find ways to improve weaknesses that the commission observes. There is a fear that a judicial performance commission in a state with contested elections would be an invitation for election havoc. This perspective is not totally unreasonable. Moreover, judicial performance commissions are not cheap. It is estimated that the Quie Commission's proposal would need an appropriation of approximately $600,000 per year.

There are many dedicated proponents of changing Minnesota's constitution regarding election of judges, but there are at least as many opponents. Minnesota does not need to link the effort to give judges systematic feedback with a constitutional amendment that may never occur. Courts are service organizations. The "business" of courts is to resolve disputes. Minnesota's judiciary owes the public a commitment to understandable performance measures.  Excellence in handling cases is a far more effective antidote to partisan politicized judicial elections than any constitutional amendment.

If you visit the Minnesota Judicial branch website you will find a lot of information.  People do visit the website; in 2009 it was visited 4.75 million times by nearly 2 million different individuals. Videos of Supreme Court oral arguments were viewed more than 14,000 times, Supreme Court opinions were viewed 104,000 times, and Court of Appeals opinions were viewed 212,600 times. But what no one can see is this:  Are litigants being listened to by judges, are they treated with respect, do they understand why the decision was made?  Minnesotans have a right to those answers, and they can have them if the judiciary commits to giving themselves and the public that information.
 
For years Hennepin County judges have surveyed lawyers and staff to get honest objective feedback. That initiative needs to expand dramatically. Every six years judges throughout the state are ordered to visit a correctional institution. Perhaps judges should commit to video themselves every year to see how they can better achieve excellence. Rarely do judges observe each other and give a colleague the kind of feedback no WATCH volunteer has the expertise to share. When an employee leaves a high-performance business, that business conducts an exit interview. Yet when a law clerk leaves a judge, there is more often than not a nice cake that is shared as opposed to constructive feedback on how the judge can be a better supervisor or how the judge might become even better in the courtroom.

The dismissal of the complaint against Judge Nordby can be seen as an isolated victory over the Board on Judicial Standards, but the lesson learned cannot simply be to berate the board. The simple fact is the Minnesota Board on Judicial Standards is not charged with the responsibility to achieve judicial excellence. It most assuredly does not have the expertise to advance that cause. The board's mission is to see that judges are ethical, but every judge in this state has aspirations to serve above the standard that they didn't do anything so egregiously wrong that they got disciplined for it.

There is a robust future for advocacy groups like WATCH, but WATCH is not a substitute for objective feedback, nor is it capable of helping judges to improve in areas where improvement is warranted. Those are the responsibilities of the Minnesota judiciary.

Judge Kevin S. Burke has served on the District Court for 27 years. He served as the chief judge for four terms. He is currently president elect of the American Judges Association.

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