With every decided motion in every lawsuit, there is a winner and a loser. In some cases, one party is the loser serially, in a lot of motions over the span of the litigation. (In some cases, lawyers get the feeling that it’s personal. “The judge hates me,” they might think to themselves. Advice: “It’s not about you.”)
When repeated losses in litigation skirmishes pile up for one side or the other, there is often finger-pointing in the loser’s camp. The lawyer may be fired. In some cases, the client may be fired. Extremely rarely, the loser (both lawyer and client) will sincerely feel that it is the judge that should be “fired.”
Of course, one cannot literally fire the judge but, in some instances, one can bring a motion to have the judge disqualified — that is, removed from the case.
This is a very dicey proposition for litigants to resort to, of course. But the Minnesota Supreme Court addressed this issue this week. It was in the context of a criminal case but, still, it is worth the attention of Minnesota civil litigators.
I bet that there is a great deal more predictability as to the disposition and decisions of judges in criminal cases than in civil cases and therefore motions to disqualify are probably more frequent there.
For one thing, the volume of cases is much greater so there is a larger sample size.
Second, I watch TV and, on TV at least, you’ve got your “hanging” judges who you know will throw the book at the defendant, and your “Kumbaya” judges who will give criminal defendants another chance (and another, another, and another?). (On the civil side, by contrast, I think it is generally much harder to pigeon-hole, stereotype, or predict particular dispositions and decisions and I bet motions to disqualify are far more infrequent.)
Back on the crime side, though, one can easily imagine a criminal defense lawyer (or a prosecutor) seeking to disqualify a judge because, in the advocate’s view, the judge is “predisposed” (also known as “biased”) toward one side or the other before the specific issues in a specific case are even raised or argued.
This week’s opinion of Minnesota Supreme Court Justice David Lillihaug made it a little bit easier for lawyers to bring disqualification motions. Maybe most importantly, if your “for cause” disqualification motion is denied, you do not have to take that up immediately with the Court of Appeals through a “writ of prohibition,” which is expensive and creates delay. You can raise that issue on appeal after the trial court’s judgment. Second, a litigant who asks a judge to disqualify herself does not, by doing so, waive the litigant’s right to have the motion heard by the chief judge of the district court.
While the district court judge had authority to hear and decide the request to disqualify, in the first instance, the judge had no authority to deny Finch’s alternative request to refer the removal motion to the chief judge. The denial of the motion in its entirety deprived Finch of his right under Minn. R. Crim. P. 26.03, subd. 14(3), to have the chief judge hear and determine his request. Thus, the district court erred.
Also,
When denying the request to disqualify, the judge …misstated key facts, including that Finch left the workhouse to go to Chicago, and that he was picked up on a warrant. The record is clear that Finch went to Milwaukee to attend a relative’s funeral and, upon his return to Minnesota, turned himself in.
The Minnesota Supreme Court concluded that, “The judge’s remarks indicate that the judge could not impartially make the findings” related to revocation of probation.
Because the district court judge unequivocally told Finch that the court would revoke his probation for any violation, and because the judge speculated that Finch had “duped” the court when he exercised his right to appeal, a reasonable examiner would question whether the judge could impartially conduct the [probation revocation] proceeding…
[A final aside: there is a common practice in appellate court decisions to conceal the names of trial court judges. One refers to “the district court” or “the trial court” rather than identifying the particular judge. There are at least three reasons that I can think of for this: (1) We wish to hold out our justice system as a system of laws, not of people, so that it is not Judge “Doe” who decides things. It is “the court” and “the law” that decide things; (2) Simply as a matter of security of judicial officers, it seems a slight accommodation to avoid including their names and (3) out of a kind of professional respect.
But our state court judges must stand for election and we all know that the electorate, generally, has NO CLUE about candidates except when they really go off the rails and get widespread media attention. So are we really making the right call when we make it extremely difficult for lay people to determine trial judges’ identities in appellate court decisions?]
(For what it’s worth (maybe very little) the trial court judge involved in this recent disqualification issue is Hennepin County Judge [available upon request] but this was not information that was particularly easy to ferret out for me and it was nowhere to be seen in the Supreme Court opinion.)