There Goes the Judge
Hennepin County District Court Judge Jack Nordby figures he probably lets just about every defendant who comes before him for arraignment out on bail. That's right, every single one. "I don't remember any defendant I have not released or set bail for at an amount I thought he or she could pay," he says.
For Judge Nordby, this is a matter of principle, based on what he says is a strict interpretation of the Minnesota Constitution. To the judicial oversight group WATCH, however, the judge's practices present a serious threat to public safety. In fact, WATCH (which stands for We're at the Courthouse) was so concerned about Nordby's record on bail that last month it took the unusual step of sending a letter to Hennepin County Chief Judge Kevin Burke requesting that Judge Nordby not be allowed to handle the hearings at which initial bail requests are usually made.
Burke denied the request, but the day after the letter arrived, Nordby began his day on the bench by delivering a blistering rebuke. He defended his views on bail, chastised WATCH for "attempting to manipulate the management of the courts," and then he explained how he thought such conflicts should be handled. In doing so, he had waded into a long-standing--but rarely publicized--courthouse controversy.
Under Minnesota law, attorneys who believe that a client's case won't fare well before a particular judge can ask to be assigned to someone else's courtroom. The first time a lawyer asks, the case automatically goes to another judge, no questions asked. But if someone doesn't like the second judge, they have to come up with good reasons to dump him or her.
Nordby pointed out that this mechanism exists precisely to compensate for the bias WATCH fears: "I came [here] expecting that some or all of the county attorneys appearing here on bail questions may decide to remove me," he told a full courtroom. "I believe they have an absolute right to effect such a removal, assuming they obey the rules in doing so, and should not be criticized, much less disciplined, if they do this--even if they do it en masse."
In a controversy that has never quite come to a full boil, the decades-old rule splits the legal community fairly neatly down the middle: lawyers support the status quo, while judges are looking for reform. Lawyers see the rule as one of the few tools they have to combat a given judge's prejudices and idiosyncrasies--perhaps a record for being lenient on batterers or of treating female defendants especially harshly. The rule allows attorneys to move a ticklish case onto more neutral ground without insulting a judge they will have to appear before again and again.
But, to judges, the slope between the rule's fair use and its abuse is slippery indeed: Many feel attorneys use removals to "shop" for a sympathetic judge; others call the practice inefficient, arguing that changes in judicial assignments make it even harder for court administrators to juggle already chaotic calendars. On top of that, few judges acknowledge allowing their biases to influence their courtroom decisions.
In recent years judges have begun seeking to change the practice. The Conference of Chief Judges--the policymaking body for the district courts and an advisory committee to the state supreme court--has proposed making it harder to bump a judge from a case, in part by compelling attorneys to spell out why they want a change. Under the proposed system, an attorney could ask a judge to step down from a case. If the judge refused, the attorney would have to take the request to the chief judge in that county and outline the reasons for wanting a different courtroom assignment. That way, the council reasons, abuses will fall.
Judges, you see, can be prickly about these things. "You resent it," says Nordby, who reckons he gets "filed on" in criminal cases more often than any other judge in Hennepin County. "It's a personal insult. It hurts your feelings. But lawyers have clients and they have a duty to those clients, if they believe a judge won't be fair." Yet he parts company with his judicial colleagues on proposed changes to the rule, ardently supporting attorneys' ability to remove a judge without having to say why.
Lawyers exercise this right for just about any reason imaginable. Michael Cromett, assistant state public defender, explains that some judges gain a reputation for tending to rule one way in particular cases. "There are certain judges that attorneys think have blinders for certain areas," he explains. "They're generally good judges, but in some cases they're not. One judge"--like most practicing attorneys, Cromett won't say who--"has a blind spot for child victims or crimes involving animals. I wouldn't want a client charged with one of these crimes coming up in front of this particular judge." Other judges may have a harsh demeanor in the courtroom. Often, personal issues come into play.
Dakota County District Court Chief Judge Leslie Metzen, who served on the administrative committee of the Council of Chief Judges while it drafted the proposed change, says judges want to change the rule because they feel it has been abused. "As the rule stands now, if a judge is removed no reason is stated," she says. "That judge has no idea why a lawyer would be removing them." If attorneys had to give reasons, she claims, "those abuses would stop." For example, the proposed changes would prohibit removals for "an impermissible purpose, including, but not limited to, race, gender, religion, sexual orientation." It does not, however, include any provisions for ensuring that this does not happen.
Both Nordby and Burke are sure lawyers do remove judges for reasons of race and gender. "Lawyers remove minority judges in disproportionate numbers for racist reasons," Burke claims. But there the two part ways. Burke believes that race-based removals are an abuse and has ruled that a judge could not be removed on the basis of race. The state court of appeals later overturned his decision.
Nordby counters that the beauty of the rule is that no reason for wanting to strike a judge need be given. "But even that is not an abuse because the rule provides for it," he says. "It's like free speech: It's the price you pay for all the benefit."
One use of the rule that concerns judges is the "blanket removal": A lawyer, firm, prosecutor's office, or public defender's office may decide--tacitly or explicitly--to always file to remove a particular judge. From 1994 to 1997 the Kandiyohi County Attorney's Office, some 60 miles west of the Twin Cities, removed Judge John Lindstrom from more than half of the criminal cases assigned to him. One case reached the Minnesota Supreme Court, which last year concluded that the prosecutors had violated the spirit of the rule and suspended Kandiyohi County prosecutors' right to file notices to remove for six months. The judges' council already had spent years reviewing the issue: The high court's ruling, judges and attorneys agree, made it inevitable that the group would finally draft a formal proposal to change the rule.
The problem is that the Kandiyohi County case doesn't necessarily prove that the rule encourages abuse, says Peter Erlinder, a professor at William Mitchell College of Law. As the rule stands now, individual cases of abuse can't be identified because removals are granted automatically and can legally be used in every case. "Certain judges do get removed... more than others, but that does not necessarily constitute an abuse," he says. "If there is an absolute right, how that right is exercised is up to the person responsible for protecting the best interests of the client."
It's nearly impossible to find people who will speak publicly about blanket removals being used in Hennepin and Ramsey counties. "It's something I've heard of, but I've never seen for myself," Cromett says. It doesn't help that Minnesota courts keep track of removals in civil cases but not in criminal ones. The magazine Minnesota Lawyer last year quoted several unnamed attorneys who said Hennepin County District Court Judge Lajune Lange is the only judge they have removed as a matter of course. According to the article, Lange was removed from 92 cases in 1999. During the same year, judges Bruce Hartigan and Delila Pierce, numbers two and three on the list, were removed from 38 and 33 cases.
Regardless of whether some lawyers are using blanket removal policies, the practice doesn't appear to be causing chaos, at least not in the larger counties. Kandiyohi County has only three judges, and during the three years the county attorney was routinely removing Judge Lindstrom, the other two had to pick up the slack. But Hennepin and Ramsey counties, with 60 and 26 judges respectively, are less likely to find themselves in a similar situation. For instance, a full caseload for a judge in Hennepin County is about 200 cases a month; even Lange's rate works out to fewer than eight removals a month.
Judge Metzen counters that it's not just a matter of paperwork. "It's a huge cost and burden to the litigants and the lawyers," she says. "They walk in the courthouse door and find out who's been assigned, then file their notice to remove. If there's no other judge available immediately, it goes to another date. That costs everybody." Employees in the Hennepin County District Court administration, however, say there's no backlog caused by the current process; courthouse computers simply reassign cases. What's more, the new rule would actually add another step. If a judge refuses to honor a request for his or her removal, the matter would go to the chief judge.
At the center of the debate is the notion that everyone who ends up in court must believe that their case is being handled fairly. Changing the rule "would eliminate one of very few opportunities for parties in court to level the playing field without running the risk of alienating the judge who's going to hear the case," notes Erlinder. If a judge is being removed too often, he says, "maybe [it's] cause to look closer at the particular judge, not to change the rule....This isn't a system that's supposed to run just for the chief judges."
Many lawyers may agree--and may routinely shy away from different judges--but coming out and saying so wouldn't be professionally prudent. "I don't have to make my living in front of the chief judges," Erlinder explains. "The fact that it's difficult to find lawyers who can comment on this is an indication of why the rule is necessary. The fact that it's difficult to make public accusations of perceived unfairness is what this issue's all about."
According to Judge Metzen, the first round of feedback from lawyers has been negative. "You can probably imagine how lawyers feel about losing this advantage that they have," she says. "It's a topic that prosecutors and defense attorneys, who rarely agree on anything, are united on. They don't want to lose this privilege." This opposition may eventually halt the proposed change altogether.
At any rate, a lot has to happen before the proposed changes to the system could be adopted. The judges studying the proposal have met with several lawyers' groups to get their reaction and are deciding whether to send the proposal to the appropriate advisory committees of the Minnesota Supreme Court. Those committees in turn will recommend to the court whether to take action on it, such as holding hearings. One insider called the process "glacial."
In the meantime, attorneys will continue to form opinions about judges based on their own experiences, their colleagues' experiences, and, of course, gossip. They will continue to deal with each judge's idiosyncrasies in the courtroom. And Judge Nordby says he will continue to insist that bail not be used to lock up people who have yet to be convicted of anything. And for the moment, those who appear before him and disagree can register their disapproval by filing a single piece of paper.
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