Thursday, September 25, 2014

Judicial Demeanor



Judges are required to comply with the Code of Judicial Conduct.  These are mainly common-sense rules to protect the dignity of the Court and the judicial process and to set forth the ethical rules the judge must obey.

One of the Canons in the Code requires that a judge maintain “order and decorum in proceedings before the court”.

As a judge, especially one who has served for many years, there is an issue that we may become so accustomed to presiding over the many and various cases that come before us that we consider the “All rise!” a call to just another day at the office.  To the people who appear before us, however, it very well may be the most important day of their lives.  This is true no matter how trivial or unimportant the matter may seem to the judge. 

As a judge, I have an obligation to enforce discipline in the courtroom.  We do serious work in that room, and I have a duty to maintain the decorum that lets people know that serious work and important decisions happen here.

I have observed a few judges who have a very informal, conversational style in the courtroom.  That method seems to work for them, but I think that being too informal depreciates the dignity of the Court.

On the other hand, I have observed judges that rule their courtrooms most strictly.  People appearing in those circumstances are often cowed into silence, just by the judge’s attitude.

So we walk the fine line of maintaining order and decorum on the one hand, while attempting to put the litigants enough at ease that they can tell their story.  Sometimes, it is a difficult matter.  When emotions run high, as in domestic cases or marriage dissolutions, it puts pressure on the judge.  When a person representing himself just doesn’t understand, it is hard to maintain patience and courtesy while explaining what he wants just won’t happen.  These situations can be even more difficult if the person does not speak English and the conversation goes through a certified interpreter.

The most important thing for folks coming to court is to be assured that they have been heard.  By balancing the discipline to maintain proper decorum and the relaxed attitude to encourage the free flow of information, a judge can do the best job possible. 
As the comment to the Rule of Decorum states “Judges can be efficient and businesslike while being patient and deliberate.”  

Thursday, September 18, 2014

So, How's Retirement?



If you have asked me that question in the last several weeks, you have probably heard me say something like, “If I were charged with Retirement, there would not be enough evidence to convict.”

Yes, the Governor has been pretty slow in naming my replacement.  When I told Patty several weeks ago that it would probably be a month before he would interview the finalists for the position, she said, “WHAT?  Doesn’t he know you have a porch to paint?!?”

I’ve also joked that the only ones happy about this situation are the walleyes in Rice Lake!

I have been working a bit more than half time, covering most calendars in Sibley County and trying to finish up a difficult case that I had tried before my formal retirement. 

This week, however, the new judge has been named:  Timothy Looby, attorney from Waconia.  Judge designate Looby has been a practicing law for a long time – he and I were on opposite sides of cases before I became a judge!  When I called to congratulate him, I learned he is most excited to begin this next stage in his career and will do so as soon as he wraps up his practice, in about six weeks.  I know that Tim will do an excellent job as a District Court Judge chambered in Sibley County.

When Judge Looby settles in as the full time judge in Gaylord, it will mean that I REALLY will be retired!  Up to now, I’ve been going to the same office I used for the last 25 years – though it is missing the photos and other personal effects that I had taken home prior to my official retirement date.  In just a few weeks, Tim’s photos and personal effects will adorn the walls and desk of that office.  If I am called on to fill in on occasion in Sibley County, I’ll use the visiting judge’s office.

When that happens, it will become real.  One chapter of my life will close and another will open.  It has been said that the only constant in our lives is change.  And that the only one who really likes change is a baby with a dirty diaper.

But we all adapt, every day, to the changes that happen in our lives.  No doubt, I’ll adapt as well.

In fact, I’m looking forward to trying! 

And, just maybe, getting that porch painted!

Thursday, September 11, 2014

Irish Alzheimer’s



Do you know the definition of Irish Alzheimer’s?  You forget everything, except the grudge.

That is an awful joke at the expense of a terrible disease, playing off of one of the many stereotypes of the Irish – that they enjoy a good fight.  I had promised myself I would never repeat that joke.  However, recently as I thought about it, I realized that it is not only a story that is in very bad taste, but it is a metaphor for things I have seen in my work and among my friends and family:  a person becomes so offended, often by someone they love, that they forget all the wonderful times and good qualities of the other person and remember only the offense.  Only the grudge.

The grudge becomes all-consuming.  It can eat a person from the inside. 

Marriages fall apart.  Families are torn asunder by inheritance battles.  Business associates lose trust and their relationship, as well as their business, fails.

Relationships, whether between family members, business associates or sovereign governments, can be strained, damaged or broken by miscommunications and misunderstandings as readily as by intentional acts.  How many wars and divorces have been unintentionally caused over the millennia by such sins of omission? 

I recall a divorce case I once handled.  The couple had been experiencing stress in their marriage.  They had an argument, and the husband retreated to the basement bedroom.  He never returned to the marital bedroom.  18 months or so later, they were in my courtroom to finalize the dissolution of their marriage.  Neither one of them could recall what they were arguing about that had led them down that irreversible path.

They could only recall the grudge. 

Who suffers as the result of the grudge?  Often, the one who is carrying it.  The other person may not even be aware of it.  They may know that Jerry hasn’t called for awhile, but doesn’t think much else of it.  Jerry, on the other hand, cannot stop t thinking about it.  He carries the grudge and he carries the pain.  So very sad.

When the grudge occurs between mother and father, the children are the innocents that suffer as a result.  Those cases are among the hardest I have had to handle on the bench.  The couple is so blinded by their rage against the other that they cannot recall the reasons they fell in love and married in the first place.  And, tragically, they cannot see the terrible damage the grudge has done to their children. 

An awful joke about a terrible disease holds a nugget of caution for us all:  Beware the unquenchable power of the grudge. 

Thursday, September 4, 2014

Payables



In the olden days, if a person got a speeding ticket, for instance, he could sign the back of the ticket (which meant he plead guilty), call the courthouse for the fine amount and send the ticket and a check by mail to take care of the matter.

Lots of people chose the other alternative:  appear on the court date indicated on the ticket.  The would then either plead not guilty and the matter would be set for trial or they’d plead guilty with an explanation – something they wanted the judge to know before the plea was accepted or the fine imposed.

The days when these matters were set on for hearing was called the arraignment calendar, or simply, traffic court.  I rather looked forward to those days.  If the 70-year-old who had been driving for over 50 years appeared on her first traffic ticket, I could accept the plea, but waive the fine in recognition of a half century of good driving.  I could take other matters into consideration as well.  And if traffic court fell on Christmas Eve, well sometimes the Christmas spirit would influence the amount of the fines levied that day.

That was all very good, but it did take time.  And not just the judge’s time – court administration, the bailiff, it all added up.  So, over time, more matters were added to the list of charges that could be handled without a court appearance – the payable list.  Later, a person could call into the courthouse with the ticket number, find out what the fine was and take care of it over the phone with a credit card.  Most recently, a statewide center was established to handle payable tickets from all over the state – just call in with your credit card and in a matter of minutes, the case would be resolved.  No need to take a half day off of work so you could go to court and settle up.

Very convenient.  Very cost effective.

But, in many cases, very unfair.  Many folks don’t know that if you plead guilty to, say, driving without insurance, that your drivers license will be suspended for 30 days.  Or, if you call in your plea to driving after suspension, your license will be suspended for an even longer time. 

Sometimes, I would like to see that young person with their third underage consumption charge.  Are they chemically dependent and need counseling or treatment?  Putting them on probation might help save a lifetime of misery.  But now, they can simply call it in and pay the fine.

But, the budget is always a major concern, so I doubt very much that these cases will ever go back on the “mandatory court appearance” list.

Not all change is progress.  

*  *  *  *  *  *  *

Sorry this was late being posted.  No electricity this morning!  Then at judges conference all day...

Thursday, August 28, 2014

Inattentive Driving



Don’t text and drive.  Pull over to make that cell phone call.  You have one job when you’re behind the wheel:  Driving!

I occasionally have folks in court charged with inattentive driving.  I don’t recall handling a texting while driving case, but some of the inattentive driving cases bring back sad and painful memories.  I occasionally share my story with people who appear before me.  Especially if they are charged with failing to stop at a stop sign.  Especially if they think it’s not a big deal. 

I tell them the story of Denise and Nathan.  And then I tell them the story of Sara.

It was a time before text messages, before i-phones, even before cell phones.  The year before I was appointed to be a judge, Denise was my legal secretary.  She not only was a first rate assistant, but her family and mine became quite close friends.  My daughters did summer day care for her children. 

One Sunday, Denise and her husband and their children, Nathan, age 5 and Sara, age 8, were on their way to meet family for lunch when a car blew through a stop sign and t-boned their car, killing Denise and Nathan. 

After the accident, Sara would often come from her house the two blocks away to help my wife make cookies, or decorate for holidays or just hang out. 

Three years, three months and three weeks after Denies and Nathan were killed in the car accident, Sara was riding with her cousin, passing through the very same intersection when a car blew the very same stop sign and t-boned the car, killing Sara.

There is a monument erected at that intersection now.  Two, actually, one on either side of the highway.  Each is about eight feet high, a tube about 18 inches in diameter, painted bright yellow.  At the top of each is a flashing red light, positioned right above the stop sign.  One last chance to catch the attention of a driver who may not have seen the stop sign as he approaches the intersection at highway speed.

So, when a person appears before me on charges of failing to stop at a stop sign, and they give me the impression that they don’t think it’s a big deal, I tell them about Denise and Nathan and Sara and explain why, to me, it is a big deal.

And then I assess the normal fine for driving through a stop sign.


Thursday, August 21, 2014

Senior Judge



I have been “retired” now for several weeks.  I used quotation marks, as I have worked about half time since my official retirement date.  Governor Dayton has not named a replacement for the judgeship chambered in Sibley County, and I have agreed to help out as I can until the new judge can take over.  Also, I was assigned to a case in Dakota County that was to have been tried in March, but for several reasons, could not be until the end of July.  So, I have been pretty busy, doing what I had been doing the last 26 years! 

I am doing this work as a “Senior Judge”.  When I retired, I applied to the Minnesota Supreme Court to continue to work on a temporary and an as-needed basis as a retired judge.  The Chief Justice approved my application, and I am now on a list of senior judges statewide who may be called to help out when needed in a particular county.

There are several reasons why a Senior Judge may be needed:  To fill in after a judge retires and a new one is appointed is the obvious one for me now.  When I was working on the Supreme Court Technology Committee, helping with the computerized case management project in the late 90’s and into the ‘00’s, I was away from the bench for two or more days a week working on that project.   A retired judge came in and served in Court in my place so that I could help out on that important project.  Sometimes, a judge becomes quite ill and needs significant time away to recover.  In those cases, a retired judge can fill in.

Rarely, there is a case that is so sensitive that all the judges in a district have a conflict.  In those situations, a retired judge can be asked to handle a particular case. 

I am happy to help out while I can, but am a little anxious to really find out what this retirement life is all about.  I had submitted my notice of retirement to the Governor’s office well in advance, and was hopeful that my successor would be named prior to my official retirement date.  But, I am not privy to the Governor’s schedule or his priorities, and I’m sure there are good reasons that my successor has not yet been named.  However, I know I am not the only person who is anxious to find out who the new judge chambered in Sibley County will be! 

Wednesday, August 13, 2014

A Judge's Nightmare

The entire State of Minnesota grieves the tragic and senseless murder of Mendota Heights Police Officer Scott Patrick on July 30.  Conducting a routine traffic stop, he was apparently gunned down in cold blood at close range by the driver of the vehicle. 

That driver is believed to have been Brian Fitch, now charged with first degree murder in Officer Patrick’s death. 

Fitch had appeared before a judge several months ago, facing a presumptive prison term.  The judge placed him on probation and ordered to a specific chemical dependency treatment program that I have sentenced many defendants to from my courtrooms.  It is a good, tough program that has had a decent track record with tough cases.  Fitch apparently left the program before completing it.

It is the situation all judges fear.  We are called to administer Justice, tempered with mercy.  We are aware that the United States imprisons a larger percentage of its population than any other country in the world.  A large part of our prison population are there because of drug offenses, and many authorities on the subject say it is far more cost effective to offer chemical dependency treatment than imprisonment.

In cleaning out my desk last month, I found a letter or two, thanking me for giving a particular person a second chance, and telling me that he or she has now been sober for months or years.  While these letters certainly make me feel good, I can’t help but think that it could have gone the other way:  The person who should have been sent to jail or prison for drunk driving becomes intoxicated again, is involved in an accident resulting in serious injury or death.  Then it would be me, answering my front door to find that cameras rolling and a microphone in my face asking for explanations. 

Judges can never be absolutely certain, even after a trial, that we know what happened at a particular event in the past.  We surely can’t be certain what may happen to a person in the future.  So, as all human beings, we must make the best decisions we can with the best information we have.  We hope and pray that our decision is correct.

As recent events testify, some times, tragically, they are not.

Our hearts go out to Officer Patrick’s wife and daughters, as well as to his law enforcement family from every department across the state.  All of us join in their grief and sorrow and ask that question that has no answer, at least in this life:

“Why?”