March 2000 

The MSBA and the Courts

by Wood R. Foster Jr.

From its very inception, a cornerstone purpose of the MSBA has been the promotion and maintenance of the efficient administration of justice. And for the same length of time, Minnesota lawyers -- whether or not members of the Association -- have taken seriously their duty to aid in the administration of justice.

I have mentioned before that preservation of the smooth functioning of the courts is one of the "highest common denominators" that bind all lawyers, regardless of their area of practice; in this column, I’d like to flesh out the broad and variegated nature of the complex relationship between lawyers and judges. What emerges is a mosaic that is not entirely apparent until one retreats far enough to appreciate the full panorama. The future picture is less clear than the past.

The profession has long involved itself in the process whereby judges are initially selected, and has consistently championed improvements in judicial compensation before the Legislature. While on the one hand championing methods that promote the appointment of qualified judges on a nonpartisan basis, the organized bar has at the same time fulfilled its duty to the community-at-large by publicizing the results of plebiscites in contested judicial elections and, in some places, publishing the results of performance surveys.

Less successfully, the organized bar has sought, largely in vain, to come up with a statewide program of meaningful and effective judicial evaluation that might be accomplished at reasonable cost.

Minnesota’s lawyers have played a large role in implementing and promoting the mechanisms for enforcement of judicial standards, regarding both sitting judges and judicial elections. Indeed, the MSBA currently appears as an amicus before the 8th Circuit Court of Appeals in a lawsuit brought by an unsuccessful judicial candidate that, in essence, seeks to politicize judicial elections.

The MSBA has long championed nonpartisan judicial independence in Minnesota, and currently seeks to find ways to reduce the need for extensive fundraising by capable sitting judges to defend their seats. Minnesota has so far avoided the horrors of partisan judicial elections across the Sun Belt, in which some judicial contests have involved expenditures of over $8 million. The Association recently formed a special committee to respond quickly to unfair public statements about individual judges.

At a less glamorous level, the MSBA has consistently proposed, lobbied, and assisted in the implementation of the rules whereby Minnesota courts are administered, as well as the rules of procedure that govern lawsuits.

The topic currently receiving massive attention at the national level, and one that will demand MSBA attention for years to come, is the question of public trust and confidence in the judicial system. I was privileged last spring to be one of five Minnesota representatives to attend an ABA-sponsored conference on this subject convened by Chief Justice Rehnquist. The conference focused on two national surveys and a number of state surveys (including Minnesota) that were carefully designed to measure public trust and confidence in various aspects of the courts. Both nationally and in Minnesota, respondents expressed concern over perceived unequal treatment in the justice system and expressed displeasure with the high costs of access to the justice system. In Minnesota, specific areas in which the courts were perceived as generating the least confidence currently were juvenile and family law.

Perceptions of bias, particularly by minorities, are nothing new in Minnesota. Both bench and bar have strived in good faith to assure fair and equal treatment, but measurable progress in terms of the public perceptions among the affected communities remains elusive. Surely the bar association should revisit the issue, perhaps with an eye to implementing the recommendations of the Supreme Court’s Task Force on Racial Bias, about which not enough has been heard since publication of its report in 1993.

Arizona Chief Justice Thomas Zlaket, an outspoken authority on matters relating to the public image of lawyers and courts, warns all judges and attorneys that lawyers are quickly pricing themselves into "irrelevance" in the public eye. Zlaket has no trouble relating the national "trust and confidence" survey findings to his perception; in Arizona, as in Minnesota, the problem of pro se litigants has reached epic proportions. While the MSBA has taken a careful and considered approach to the issue of pro se litigants, implementation of the recommendations of the 1998 Task Force is far from complete. Family law, in particular, seems to be the bellwether for this problem; in some places, over 50 percent of family court litigants are unrepresented by attorneys.

Will "quick fixes" be enough? Zlaket argues that the only "fix" is a complete restructuring of the courts -- a restructuring that would recognize that the cost of access has become so high that the system must be redesigned expressly for those who are not represented by attorneys. The model we presently have, most would agree, is geared to the represented client.

Chief Justice Zlaket’s opinions do not yet represent the mainstream of thought on court reform. All attorneys, however, and particularly those interested in the long-term relationship between lawyers, courts, and justice should take seriously his warning, and begin to recognize that traditional relationships can no longer be taken for granted at a time of rapid change in both the economy and the legal profession.

A vigorous organized bar, in my opinion, is a critical element in monitoring and changing traditional concepts of justice and courts. Together, we can have an influence; separately, we are merely onlookers.

Wood R. Foster Jr. is president of the Minnesota State Bar Association. A partner in the firm of Siegel, Brill, Greupner, Duffy & Foster, PA, he concentrates his practice in commercial litigation and class action. He is a graduate of Amherst College (1965) and of the University of Michigan Law School (1968).