By William J. Wernz and Sara Boeshans
In 1971, a Hennepin County Municipal Court judge found a law student in contempt and ordered her jailed for two hours. The student believed that the student practice rule authorized her to confer with a traffic court defendant, but the judge believed the student’s supervising attorney (who had authorized the contact from another courtroom) had to be in traffic court. The judge concluded the student was engaged in the unauthorized practice of law.
In 1970, another judge, in probate court, steered probate matters to a bank of which he was an officer, director, and shareholder. A widow was aggrieved when the judge overrode the instructions of her husband’s will and appointed an officer of the judge’s bank as estate administrator.
What could be done about the judges’ conduct in these cases? The public’s concern was reflected in newspaper articles about both cases.1 Lawyers’ concern was evident from the appointment of an ad hoc Hennepin County Bar Association committee, which concluded there was no reasonable basis for the contempt finding or jailing and the judge abused his discretion.2 Yet until 1972, when the Board on Judicial Standards commenced operations, the answer would have been, “Practically speaking, little or nothing has been or can be done about judges’ conduct except in the most extreme cases.”
Over the centuries, English and American law tried, without success, various systems of judicial discipline.3 Judges in England (until the 18th century) and in America (until Independence) served at the pleasure of the monarch, with predictable problems for judicial independence. Impeachment and removal by the Legislature were more democratic than monarchical removal, but these remedies were unwieldy and prone to politicization. Those of a certain age will remember the “Impeach Earl Warren!!” signs once common in certain areas of the United States.
As the roles of law, lawyers, and the judicial system greatly expanded in America in the 1960s, the need for systematic regulation was widely recognized. Following the ABA’s lead on lawyers, the Minnesota Lawyers Professional Responsibility Board was created in 1970.4 For judicial discipline, a national template called “The California Plan” was created by amendment of the California constitution in 1960.
The California Plan involved a permanent statewide commission, with membership drawn from judges, lawyers, and the public. The commission was authorized by state law to investigate complaints against judges and to take disciplinary action. Lower-level disciplines could be imposed by the commission; more severe discipline would be imposed by the state Supreme Court, on petition of the commission.
Minnesota and substantially all other jurisdictions eventually followed the California Plan.5 The forerunners of the present Minnesota Board on Judicial Standards were created in 1969-72.
Early Minnesota judicial discipline
Before 1972, there were no practically available discipline authorities or procedures in Minnesota. Removal of judges after impeachment by the Minnesota House of Representatives was constitutionally authorized, but only two judges were impeached, both in the 19th century. The first impeachment, followed by trial in the Minnesota Senate, resulted in a dismissal of charges. The second impeachment resulted in the judge’s removal for three years, but the Senate proceeding, which lasted from January to March 1882, was so cumbersome that impeachment was never used again.6
For many decades, the governor could remove lower court judges for malfeasance in office, but this power was lost when the lower courts were abolished. The only actual removal was on the blatantly political basis that the judge had criticized American involvement in World War I. In overturning the removal, the Minnesota Supreme Court explained, with a splendid sense of proportion, “But we are clear that scolding the President of the United States, particularly at long range, condemning in a strong voice the war policy of the federal authorities, expressing sympathy with Germany, justifying the sinking of the Lusitania, by remarks made by a public officer of the jurisdiction and limited authority possessed by the judge of probate under the Constitution and laws of this state, do not constitute malfeasance in the discharge of official duties, and therefore furnish no legal ground for removal.”7
Disqualification of a judge was and is an available remedy, but that remedy was rarely used and extended only to individual cases.8 The ballot box was a remedy of sorts, but was hardly satisfactory. Striking examples of the limits of judicial ethics enforcement are found in the related cases of two probate judges, Bartholet and McDonough.
In the 1960s, probate judges sometimes appointed estate appraisers and had the appraisers paid from estates in amounts that exceeded the value of their services. Bartholet took this practice two steps further. Having approved excessive compensation to three appraisers whom he appointed, Bartholet requested and received kickbacks, purportedly to Bartholet’s campaign fund. Bartholet used the kickbacks for his personal purposes. In 1969, Bartholet resigned as probate judge in connection with his guilty pleas to crimes involving the kickbacks. He was subsequently disbarred.9
Judge McDonough was one of Bartholet’s appraisers, who paid kickbacks, in 1966. In 1976, the Board on Judicial Standards initiated investigation of Judge McDonough on numerous grounds. However, a four-year statute of limitations enacted in 1972 precluded the board from charging McDonough with misconduct regarding the Bartholet fees and kickbacks. After the statute was repealed in 1978, the Court, on McDonough’s motion and with agreement of the board, ordered the board’s file on the Bartholet matter closed, without any disciplinary action. McDonough was disciplined for offenses unrelated to Bartholet.10
Two forerunners of the Board on Judicial Standards
In 1968, the Minnesota Senate began to study creation of a judicial discipline system, with the California Plan as a general model. The Senate also then began to consider reorganization of the Minnesota judicial system. On request, the MSBA weighed in on the issues. Although an MSBA straw poll went against the discipline proposal, it appears the majority vote was not against creating a judicial discipline system, but instead opposed only a provision to put fewer judges on the commission than contemplated by the California Plan.11 Over time, the MSBA came to support creation of a judicial discipline system modeled generally on the California Plan.
The first forerunner of today’s Board on Judicial Standards (BJS) was the Commission on Judicial Responsibility (CJR).12 The CJR was created by an untitled document signed February 13, 1970, by Chief Justice Oscar Knutson. As authority for creating CJR, the document cited Minn. Stat. 2.724, Subd. 2, which gave the chief justice general authority to supervise district courts.
CJR was created “for the purpose of counseling and advising all of the judges of the State with respect to their conduct and participation in non-judicial activities...” Discipline authority was not mentioned. The CJR members were the chief justice, district court judges from each of the 10 districts, the chairs of the Probate and Municipal Judges Associations, and the MSBA president and president-elect.
CJR held its first meeting on September 9, 1970, to deal with organizational issues. At its February 12, 1971, meeting, CJR considered several complaints against judges and also laid over to the next meeting the formulation of procedural rules. At its March 5, 1971, meeting, CJR issued its first formal resolution of a complaint. The determination included findings of fact that a judge “should not have” acted as he did in a matter. Citing its limited “purpose of counseling and advising,” CJR made, “the following recommendation: That Judge ____ought to disqualify himself from acting [in a particular matter].”13 In a matter concerning a different judge, CJR resolved that a certain complaint “is without merit and that no further action will be taken by this Commission.” If the Bartholet matter, discussed above, had come before CJR, it appears that the most CJR could have done would be to counsel and advise Judge Bartholet to stop his criminal activity!
On June 2, 1972, CJR held what appears to have been its last meeting. With a constitutional amendment creating a single discipline system for all judges on the November 1972 ballot, CJR recognized that it likely had a limited future.
The 1971 Legislature created the Commission on Judicial Standards (CJS).14 The statute gave CJS authority to recommend discipline to the Supreme Court. The Court was authorized to adopt rules for the CJS. The statute was effective immediately for lower court judges, but would become effective for district court and higher court judges only upon adoption of a constitutional amendment. By statute, the original members of CJS were three judges (from probate, municipal and district courts), two lawyers (the MSBA president and president-elect), and four public members. Two CJS members were female.
CJS hit the ground running: Its first three meetings were held on December 10, 1971 and January 7 and 21, 1972, adjourning after 11 p.m. on each occasion. Officers were elected, recommendations for procedural rules were made to the Supreme Court, a budget was established, and the first complaint was investigated and resolved. CJS appointed as Executive Secretary Richard Klein, who also served as CJR executive secretary and Supreme Court administrator. Members were authorized to attend a national conference on judicial regulation.
In March 1972, CJS issued its first determination upon a complaint of judicial misconduct. The determination included findings of fact and conclusions that “conduct was lacking in judicial propriety” and “lacking in judicial responsibility.” No specific standards were cited, because no Code of Judicial Conduct or equivalent had yet been adopted. The CJS determination was served on the judge but not made public. No formal disciplinary action was taken.
1972 constitutional amendment and 1973 statute
The amendment needed to fully implement CJS was introduced in the Legislature in 1971. It competed for a place on the ballot with at least 51 other proposals to amend the Constitution.15 The 1972 ballot included only four of those proposals. Amendment No. 2, as the CJS amendment became known, stated:
Shall Article VI of the Constitution of the State of Minnesota be amended to provide for the organization and conduct of the judicial power of the state, authorizing the discipline and removal of judges, permitting the Legislature to provide for the assumption of the jurisdiction of the probate court, and providing for the appointment of the clerk of district court?16
Amendment No. 2 had bipartisan support, including that of DFL Gov. Wendell Anderson and the Republican secretary of state. The MSBA and the media were also supportive. One editorial stated, “[T]he amendment, if approved, means an end to the absurd fact that there is no practical way to cope with a probate, district or Supreme Court judge who becomes physically or mentally disabled, or who is a bad actor. That the commission includes nonlawyers along with lawyers and judges is some guarantee, it is to be hoped, that it won’t act as a close-the-ranks, protective body.”17 Opposition to the amendment was scant, and rarely focused on the portion related to CJS.
On November 7, 1972, more than 65 percent of those voting favored Amendment No. 2.18 In 1973, to incorporate the recently approved Amendment No. 2, the Legislature amended the 1971 statute to update the composition of the commission. The probate court judge position was replaced by a county court judge. The number of judges, attorneys, and public members otherwise remained the same. A second amendment, in 1973, provided that the commission had jurisdiction in the state court system over “all judges, judicial officers, referees and justices of the peace.”19 For the first time, CJS gained jurisdiction over Supreme Court justices and district court judges.
Code of Judicial Conduct, BJS rules, Legislature, and Court
In 1924, the ABA adopted its first Canons of Judicial Ethics. In 1972, the ABA adopted the Model Code of Judicial Conduct. The Canons and Codes stated the substantive prohibitions and permissions of proper judicial conduct.
The Model Code was much more specific than the Canons in many of its prohibitions.
The Model Code was updated in 1990 and in 2007.
On March 29, 1972, the Minnesota Supreme Court adopted the Standards of Judicial Responsibility. These standards were later superseded by the Code of Judicial Conduct, which in Minnesota has generally followed the Model Code, with some variations. In contrast with lawyer rules, the Court specifically adopted the comments to the judicial Code, since at least 2007.
The Legislature has also adopted several standards of judicial conduct. The old standard for removal from judicial office by the governor was based on “malfeasance in office.” The 1971 statute creating CJS also provided for discipline of misconduct, including a judge’s “persistent failure to perform his duties, habitual intemperance or conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” As noted above, the Legislature also enacted a statute of limitations on judicial disciplines, which, during the four years the statute was in effect, the board and Court apparently regarded as binding.
Even today, the respective roles and primacy of the Legislature and the judiciary in judicial discipline and standard-setting remain less than entirely clear. The Court has stated, “While Minn. Const. art. VI, §9, also gives the Legislature power to discipline judges... our case law suggests that the Legislature’s ability to discipline judges is limited to the impeachment process.”20 However, the Court previously stated that the effect of the 1972 constitutional amendment was “to create a separate and distinct method for retirement, removal or other discipline of a judge who was disabled, incompetent or guilty of conduct prejudicial to the administration of justice. The adoption of this article did not remove from the constitution the impeachment powers of the Legislature.”21
A full history of the Board on Judicial Standards is well beyond the scope of this article. A few highlights noted here will be described further in an article to be posted on the BJS website. The highlights include discipline cases,22 federal constitutional law cases and a related article,23 and amendments to the Code and Rules, as well as related Advisory Committee reports.
For nearly 50 years, Minnesota has had a reasonably effective system for dealing with complaints against state court judges and for providing ethics advice to them. It is now hard to believe that before the early 1970s, there was no such system. Minnesota did not wait for scandal to create a judicial board, but instead recognized the need that arose out of the growing role of the law in society.
Editor’s note:
A longer version of this article, which includes important developments in the decades after the Board’s founding, will be posted on the website of the Board on Judicial Standards at www.bjs.state.mn.us. Prior articles in this series appeared in Bench & Bar in July 2018 (“Whence Lawyer Discipline? The origins and evolution of the Lawyers Professional Responsibility Board”) and February 2018 (“Out, Damned Spot! The creation of the Client Security Board”).
WILLIAM J. WERNZ is a member of the Board on Judicial Standards. Bill was also director of both the Client Security Board and the Office of Lawyers Professional Responsibility, and he is the author of Minnesota Legal Ethics, a free online treatise hosted by MSBA. Bill was Dorsey & Whitney’s ethics partner for 20 years.
SARA P. BOESHANS is the staff attorney for the Board on Judicial Standards. Sara previously served as an assistant attorney general in the public safety and health licensing divisions of the Minnesota Attorney General’s Office.
Notes
1 Bob Lundegaard, Report on Judge Sykora Incident Not Made Public, Minneapolis Tribune, 3/25/1972, at 11A; Austin C. Wehrwein, The Shadow of Conflict, Minneapolis Tribune, 9/11/1970.
2 The Lundegaard article also reported that the Commission on Judicial Standards made findings regarding the matter, but the findings were confidential by law.
3 Edward J. Schoenbaum, A Historical Look at Judicial Discipline, 54 Chicago-Kent L. Rev. 1 (Apr. 1977).
4 William J. Wernz, Whence Lawyer Discipline? The Origins and Evolution of the Lawyers Professional Responsibility Board, Bench & B. of Minn., July 2018.
5 James J. Alfini, Shailey Gupta-Brietzke, James F. McMartin IV, Dealing With Judicial Misconduct in the States: Judicial Independence, Accountability and Reform, 48 S. Tex. L. Rev 889 (Summer 2007).
6 Minnesota Constitution, Article 8. Judge E. St. Julien Cox was removed for three years for several instances of intoxication on the bench. For details regarding early cases cited here, see Note, Judicial Disciplinary Proceedings in Minnesota, 7 Wm. Mitchell L. Rev. 459 (1981).
7 State ex rel. Martin v. Burnquist, 141 Minn. 308, 170 N.W.201, 203 (1918).
8 William J. Wernz, Judicial Disqualification in Minnesota, Bench & Bar of Minn., November 2016.
9 In re Bartholet, 293 Minn. 495, 496, 198 N.W.2d 152, 153 (1972).
10 In re McDonough, 296 N.W.2d 648 (Minn. 1979).
11 October 1968 B&B
12 A “Judicial Ethics Commission” was “approved by the District Judges Association” in September 1969, but whether it ever performed any functions is unclear.
13 CJR minutes include specific identifications, but that information is not publicly available.
14 Minn. Stat. §490.15-.17.
15 Whereatt, Robert, Constitution Revisions Are Eyed, St. Paul Pioneer Press2/8/1971.
16 Act of June 7, 1971, ch. 958, 1971 Minn. Laws 2033.
17 Editorial, Vote for Amendment No. 2, Minneapolis Star, 10/16/1972.
18 See All 4 Amendments Appear Approved, St. Paul Dispatch, 11/8/1972.
19 Minn. Stat. §490.18 (1973).
20 State v. Irby, 848 N.W.2d 515, 521 (Minn. 2014).
21 In re Kirby, 350 N.W.2d 344, 347 (Minn. 1984).
22 In re Todd, 361 N.W.2d 813 (Minn. 1985); In re Kirby, 354 N.W.2d 410 (Minn. 1984); and In re Miera, 426 N.W.2d 850 (Minn. 1988).
23 Republican Party of Minnesota v. White, 536 U.S. 765 (2002); Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (en banc); Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012) (en banc); Thomas Vasaly, Judicial Elections and Free Speech in 2018, Bench & Bar of Minn., June 2018.