A Brief Note on the Challenge of Judging

Catrina Johnson called the police because her teenage son was out of control and she feared for her physical safety. The police arrived. Her son, unfortunately, was unable to gain control of himself even after the police came to the scene. The police had to restrain and handcuff him forcefully.

In the struggle to restrain young Johnson, Minneapolis Police officer Robert Heiple felt a sharp pain in his leg. He erroneously concluded that Ms. Johnson had kicked him.  So he arrested her and she spent three days in jail. (The U.S. Court of Appeals for the Eighth Circuit recently allowed her lawsuit to go forward claiming a deprivation of her clearly established constitutional rights.)

(Congratulations to Ms. Johnson and her lawyer, Mr. Peter J. Nickitas! (Some of our coverage of Mr. Nickitas has been less laudatory, which goes to show the importance of repetition, persistence, and tenacity for success in the practice of law.))

Going back to Ms. Johnson, hypothetically, if Ms. Johnson’s employer fired her for being absent for work for those three days in which she was jailed because a police officer erroneously thought she had kicked him, would she be entitled to unemployment benefits?

Or should she have been barred from unemployment benefits based on “absence due to encarceration” (if she had sought them)?

We are cynical enough to suggest that some readers would answer the question, “yes,” but the vast majority would say, “no” and it would not even be a close question.

In an entirely different case (similar only in that there was an appellate decision this week), however, an administrative law judge (“ALJ”) denied unemployment benefits to Mr. Farah Muse based on a per se rule that “absence from work due to incarceration constitutes employee misconduct as a matter of law.”

The Minnesota Court of Appeals correctly reversed the ALJ’s finding but the two cases highlight that fairly clear legal principles can and often are obscured by the swirling fog of facts.

Had the ALJ faced the facts of Ms. Johnson, we expect the ALJ would have reached the correct decision. But Mr. Muse’s facts were not as glaringly obvious as the facts in Ms. Johnson’s case. (Ms. Johnson’s facts might only be glaringly obvious in retrospect, to be sure.) Considering the volume of cases that ALJ’s likely deal with, the limited time and resources they have, and the fact that they are human, it comes as no surprise they get cases wrong. Judging is not easy.