And so in a similar vein, we find Minnesota’s Judge Jack Nordby asserting defendant due process fairness and Free Speech grounds to stave off an ethics complaint lodged by the court monitoring organization, “WATCH.” The judge and the court watchdog group have locked horns before. But last year, he got himself in hot water over lengthy remarks made from the bench against the presence of WATCH in his courtroom.
Following his comments, WATCH filed a letter of complaint to the Minnesota Board on Judicial Standards. An overview of the incident favorable to WATCH entitled, “Courtroom clipboards are a courtesy, not a threat,” was also posted at MPR’s blog.
Besides raising the usual defenses against allegations of ethical misconduct, Judge Nordby also brought up the strongest argument of all, the preservation of judicial independence. It’s something I’ve blogged about before, albeit in another context when a local jurist was criticized for ex-parte contacts in upholding lavish attorneys fee awards in a highly contested guardianship dispute.
It’s the principle that “The weight of legal authority sides with the judges so long as they are acting within their general jurisdiction and their acts are judicial ones.” See “Judicial immunity for a probate judge’s ex-parte contacts.”
But what was most amazing in Judge Nordby’s Response was that like Professor Tarkington’s free speech for lawyers argument, he said that censuring his uttering and writing amounts to a violation of his First Amendment protected speech and undercuts his ability to “uphold the defendant’s due process right to a fair proceeding.” Of course there was no reference to Professor Tarkington in his response but still, it’s what I thought about as I read and also recalled the proverb, “what’s sauce for the goose, is sauce for the gander.”
There’s little doubt that for Judge Nordby, having WATCH in his court is like sitting on a splinter on a wooden bench. He thinks they’re in court to intimidate even though on their website, WATCH describes its mission as “to make the justice system more effective and responsive in handling cases of violence against women and children, and to create a more informed and involved public.” The organization was founded in 1992. It trains red clipboard-carrying volunteers to observe court and to report on what they see in court. But it’s those red clipboards that really get to the jurist.
Judge Nordby’s comments took up 11 pages of court transcript. And like I said, he took a particular exception to the red clipboards carried by WATCH volunteers, going as far as likening the clipboards to “gang signs and insignia used to influence and intimidate witnesses.”
And as recapped in the FORMAL STATEMENT OF COMPLAINT, Judge Nordby also enumerated his criticisms of the red clipboards as a “not very subtle threat to the judge”; “arguably ex parte communications to judges about pending cases”; as representing “strongly partisan communications of a threatening nature to judges”; and asserting that the red clipboards in court gives defendants “a plausible argument that they create either an actually biased court, or a palpable appearance of bias”; and finally that the appearance of a red clipboard means that a judge should notify the defendant that an accuser’s advocates is pressing the judge, “Do it our way or we’ll get you.”
The Minnesota Board of Judicial Standards charged Judge Nordby with failing to uphold and promote independence, integrity, and impartiality of the judiciary; failing to avoid impropriety and appearance of impropriety; failing to comply with the law; failing to promote public confidence in the judiciary; abusing the prestige of judicial office; failing to perform the duties of judicial office impartially, competently, and diligently, and failing to perform judicial duties without bias or prejudice.
A public hearing was held this past January 18 and 19, 2011 and a decision is still pending.
Still, I do like the judge’s free speech and defendant due process arguments but only wish the gander could get some of that sauce, too.