Canon Fodder

When Minnesota Appeals Court Judge Roland Amundson pleaded guilty in April to stealing more than $300,000 from a trust fund he was managing for a developmentally disabled woman, the crime made headlines. While he was at it, Amundson appears to have committed an additional misstep--albeit one that has received significantly less notice.


"A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," reads canon 3(D)(1) of the Minnesota Code of Judicial Conduct. Moreover, even if a judge believes a potential conflict of interest to be insignificant, under canon 3 he is obliged to disclose the conflict and allow the litigating attorneys to determine whether he should be recused from the case.

In 1995 Amundson hired attorney R. Thomas Greene to represent him in his capacity as trustee of the estate of a mentally retarded woman. In March of the following year, Greene joined the Minneapolis law firm Rider Bennett Egan & Arundel. Between March 1996 and September 2001 (when Greene ceased to represent Amundson), Rider Bennett argued 26 cases before a three-judge panel that included Amundson. In eight of those cases, Amundson wrote the legal opinion on behalf of the panel. In five of those eight cases, he found in favor of Rider Bennett.

In one of those five cases, an intra-family dispute over millions of dollars in corporate assets, attorney Robert Borhart was on the losing end of the appeal. "Amundson adopted every position taken by Rider Bennett, is the easiest way to say it," says Borhart. "Everything that Rider Bennett wanted, they got."

After Amundson was indicted, Borhart learned that the judge had been represented by a Rider Bennett attorney at the time he wrote the opinion. In May Borhart filed a motion with the appeals court seeking to have the decision thrown out owing to a conflict of interest. "It should be uncontested that Judge Amundson violated Canon 3(D)(1)," Borhart argues in his complaint. "Would any objective observer deny that 'impartiality might be questioned' when a judge decides a case in which his own personal lawyers, who protect him and to whom he provides fees, represent one of the parties?"

Borhart is quick to point out that he has no evidence that Rider Bennett was aware that Amundson was engaged in theft. "Our focus is on the judge, and the problem we have is that he knew who his law firm was--we have correspondence he wrote to Rider Bennett using his judicial letterhead--and he didn't disclose it."

On June 14 a three-judge panel of Amundson's former colleagues tersely denied Borhart's motion, noting that in the disputed case the appeals court had ruled unanimously.

"I'm shocked that the court gave no explanation whatsoever about its decision," Borhart says. "They didn't analyze the canon, they didn't analyze or explain the facts, they didn't even acknowledge that there was a conflict of interest. I hesitate to say it, but I am led to believe that the court was a little too concerned about avoiding the issue than squarely addressing it. I'm afraid we're looking at a situation where due process is being compromised. In effect, the court has decided not to look at the impropriety involved."

Specifically, Borhart questions the relevance of the unanimous ruling in the disputed case. "If it's a unanimous ruling, are we saying it doesn't matter if [one of the three judges] has a conflict?" he asks. "This decision seems to be telling the people of Minnesota that when it comes to judges meeting the standards of conduct, two out of three ain't bad."

Court spokesman Charles Tombarge says the judges are prohibited from discussing their ruling on Borhart's complaint because it is eligible for appeal.

"The concept of conflict of interest is not a bright-line thing, it is a gray area," says Joseph Daly, a professor at the Hamline University School of Law who has argued cases before the court of appeals. "Just because a judge knows or has worked with one or both of the parties doesn't mean he can't make a fundamentally fair decision. On the other hand, the situation ought to raise a red flag, and the judge should be thinking, 'Is there even the appearance of impropriety here?' Obviously, [Amundson] should have revealed any conflicts he had."

Borhart says his firm intends to ask the Minnesota Supreme Court to review its decision. "But if you look at the odds of petitions being granted--it's something like two percent--it's a real Hail Mary situation," the attorney says.

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