Reforms

Select the reforms you are interested in reading about, or scroll down to read about all of the reforms:

Make Judges, Court and Police Officers and Lawyers Accountable
[This is a digest of the chapter in the book]

Common Sense Commission
Judges do not like seeing their name in print in connection decisions that are obviously unjust. It embarrasses them. This fact can be used to give judges a powerful incentive to act responsibly. A commission of ordinary citizens (the "Common Sense Commission") can be established to review decisions referred to them by a party to a lawsuit. The Commission will review the decision from the perspective of common sense. Decisions that don't show any will be described in newspaper stories and television and radio station announcements.

Judges will be required to inform parties in each lawsuit of the Common Sense Commission and how to contact it. The commission will not have the power change any decision or the result. This must be done by an appeal. But the commission could widely publicize decisions it thinks are unjust or lacking in common sense.

Evaluate Every Judge's Work Annually
A new state agency, not a part of the judicial branch of Minnesota government, can be established to review the work of each judge once a year and issue a report to the public on his/her performance. This agency, the "Minnesota Judicial Evaluation Commission," can be a small group of commissioners appointed by the governor and possibly confirmed by the legislator. In addition to evaluating the performance of each judge once a year, it also can publish a report on each judge who seeks to be re-elected as proposed in Chapter 13, Publish Report Cards on Judges at Re-Election Time.

Make Judges Pay Damages in Egregious Cases
Judges will act much more responsibly if they may be liable for damages when they injure a person intentionally or as a result of gross negligence. A court, the "Minnesota Judges Court" will consider and rule on complaints against judges. The Judges Court would be a special court independent of the state judicial branch of government whose members will be selected in the same manner as judges of the Minnesota Court of Appeals. The only cases that would go before the Judges Court would be those that make a claim against a judge for damages. Judges will be liable for damages that result from gross negligence in performing his duties or from actions intended to wrongfully hurt a person.

To protect judges from harassment and frivolous or baseless claims or suits, the Minnesota Judicial Evaluation Commission will first decide if probable cause exists and, if so, refer the case to the Judges' Court. A judge would be liable to pay damages if the Judges Court decides that the judge: (1) misinterpreted or misapplied the law either intentionally or as a result of gross negligence; (2) was clearly and unfairly biased against the person who makes the claim; (3) clearly was dishonest or untruthful; or (4) made a ruling so lacking in merit or grounds as to be clearly unjust. The law would apply to all judges including judges of the Minnesota Court of Appeal and the Minnesota Supreme Court and to others who perform judge-like duties such as court referees.

Certification of Court Decisions
A person who starts a lawsuit and his attorney are required to certify that there is a reasonable basis for the lawsuit. A person who brings a lawsuit in bad faith, or with no reasonable basis and thereby violates the certification can be fined (called "sanctions"). The lawyer also can be sanctioned. Because of this possibility, lawyers normally will refuse to sue out a case that isn't supportable. Like lawyers, judges will include a certification under oath in each decision that the decision is based on the facts in the case, the law, and is just. A judge may be sanctioned and assessed damages payable to an injured party if the Judges Court finds that his/hr decision was, intentionally or through gross negligence, dishonest, biased, contrary to law, or so lacking in merit as to be unjust.

Lawyer Reference Service
A reference service similar to the Better Business Bureau can be created to help people determine if a lawyer they want to hire has a reputation for honesty and reasonableness. Every lawyer would be required to inform potential clients of the Lawyer Reference Service and provide information on how to contact it.

A lawyer would be listed by the Lawyer Reference Service if ten of his clients provide a signed written statement to the Lawyer Reference Service that he/she is honest and ethical. Nothing would be said by the Lawyer Reference Service about any lawyer who is not listed on its roster.

The Lawyer Reference Service could receive complaints about a lawyer and, if it determined they are justified, remove a lawyer from its roster. The lawyer Reference Service would not be allowed to give a negative reference about any lawyer - merely whether or not a particular lawyer is listed on its roster. This reform would provide incentive for lawyers to develop and maintain a reputation of being ethical.

Get Politics out of Judge Selection
[This is a digest of the chapter in the book]
Judges will be appointed to office under the proposed new process. New judges no longer would be elected to office.

A selection committee consisting of upright citizens who do not hold elective office or work for a politician will select candidates for district judge. There will be a selection committee for each of the ten judicial districts.

A state council will nominate judges for the Minnesota Supreme Court and Court of Appeals. Each council will consist of civic leaders, educators, businesspersons, clergy and others as members. Lawyers and judges can be members of these councils, but their number will be limited.

For each judge vacancy in a district, that district council will submit a list of three candidates to the governor who can select the new judge only from that list. Although all new judges would be appointed, each would have to face the voters once every four years in an election to determine if he/she should continue in office. Prior to each such election, a report on the performance of the judge would be widely published in the judicial district involved so each voter can make an informed decision. The proposed process is a version of the Missouri Plan, which was the first plan implemented to choose judges on merit as much as possible instead of political connections. Sixteen states have adopted similar plans.

Publish Report Cards on Judges at Re-Election Time
[This is a digest of the chapter in the book]
An independent, nonpartisan commission, the Judicial Evaluation Commission ("Commission") will conduct performance evaluations of judges annually. To assure independence, the commission would not be part of the judicial branch of state government. The Commission will: (1) evaluate the performance of each state court judge once each year, and (2) publish a report on the performance of each judge who seeks re-election. The report will be widely published within the district of each judge who seeks re-election and will be distributed to registered voters. Evaluation of district court judges, court referees, and other judicial officials will be based on surveys of lawyers and people who were in lawsuits or court hearings, information on how many times the judge was reversed by a higher court, review of some of the judge's opinions, reports received by the Commission from people and lawyers, and other factors established by law or by the Commission. Evaluation of appeals court judges could be based on surveys of lawyers, legislators and the general public and reports received by the Commission from people and lawyers. The report issued on each judge who is seeking re-election will summarize the Commission's information on and evaluation of that judge and could recommend re-election or defeat.

Reform Campaign Finance for Judges
[This is a digest of the chapter in the book]
Judge re-election campaigns should be publicly funded as they are in the state of North Carolina. Currently, Wisconsin, Illinois and New Mexico are considering such a law.

To run in the general election, a candidate for judge would have to receive 5% or more of the vote in the primary. A candidate could accept campaign contributions for the primary race up to $50 per person. The balance remaining in the campaign account after the primary would be considered part of the public grant and the public grant would be reduced by that balance.

Each candidate who qualifies for the general election would receive a public grant if he/she agrees to certain terms. The candidate must agree not to accept any campaign contribution for the general election and must agree to a spending limit. With respect to judges and candidates who decline to accept public funding in favor of getting campaign contributions, the law would provide that members of law firms, lawyers and others who contribute to a judge's election or re-election would not be allowed to appear before that judge in court for four years.

Judge elections would be nonpartisan as in municipal elections. All judge candidates who receive 5% of the vote in the primary would be eligible to run in the general election.

Public financing of judge elections will not be needed if Minnesota adopts a plan to appoint judges on the basis of merit as proposed in Chapter 12, Part III. In the meantime, the proposed plan gives incumbent judges the means to avoid selling justice for campaign contributions.

Abolish $150 Gifts (Gratuities) for Judges
[This is a digest of the chapter in the book]
Judges and members of the judge's immediate family will not be allowed to accept any gratuity from anyone except a member of the judge's immediate family. The intent is to abolish the current rule that allows a judge to accept an unlimited number of gratuities of up to $150 in amount. Such free gifts may have the effect of influencing decisions. They create a perception of impropriety that degrades the public's perception of judge integrity.

A gratuity is a free gift that has a value of more than $1. "Immediate family" means a spouse, child, or parent. Judges, lawyers and law firms will file a report each year with the Judicial Standards Board concerning gratuities. In these reports, each judge shall list each gratuity he/she received from a person who is not a member of the judge's immediate family, and the name and address of the donor.

Each lawyer and law firm shall file a report with the Judicial Standards Board in which it lists any gratuity the lawyer or his firm, or any employee of his firm, gave directly or indirectly to a judge, the name of the judge to whom it was given, and the amount or value. In the case of a gift from an organization such as a bar association, corporation or other person, such as a fee for a speech or award, etc., the donor will also be required to report the name and address of each source of the funds used to pay for the gift.

Make Justice Efficient, Affordable and Reasonable
[This is a digest of the chapter in the book]
Too many citizens are denied justice simply because of its cost. The cost of defending against a lawsuit or pressing legitimate charges must be reduced.

Some of the actions that will reduce the cost of litigation are: (1) eliminate court fees of hundreds of dollars that many people cannot afford; (2) simplify the court process; (3) reduce the need for lawyer time, which is very expensive; (4) assess fines on lawyers and their clients who press meritless cases; (5) provide independent, able and adequately funded public defenders to poor people who are charged with a crime or face losing custody of a child; and (6) expand the use, effectiveness and affordability of arbitration and mediation.

Court filing and other fees should be eliminated. Getting justice is a citizen's right and a government obligation. Deterring meritless lawsuits and actions can be accomplished by imposing fines and penalties as described below. This is far better than making justice unavailable because a person is too poor to pay court fees.

Saving Time and Shortening the Process
The court process can be simplified by requiring parties in a lawsuit to provide the other party with relevant information and documents up front as is the practice in federal courts. In those actions, this is called: "initial disclosures," and it saves a lot of time and expense.

Lawyer time, which often is $200 per hour or higher, can be reduced by providing a case summary and file organization service to people. This public service would be at a reasonable cost, say $50 per hour. Legal advice would not be provided by this service. The service would gather information and documents, prepare a case summary that describes the situation, and assemble the documents into a file. The summary and file can be submitted to a lawyer. This would save the significant time if often takes for a lawyer to start providing legal advice and start legal actions.

Arbitration and Mediation
Early use of effective arbitration and mediation could resolve disputes with huge savings in time and expense. Waiting until shortly before trial to engage in arbitration/mediation is not necessary.

Arbitration and mediation are different, although the purpose of each is the same. That purpose is settle the dispute and end the lawsuit if there is one.

An arbitrator conducts an arbitration. Mediation is conducted by a mediator. Both are referred to as "neutrals."

Arbitration
Arbitration can be binding or non-binding. If it is binding, the arbitrator, after listening to the testimony and considering the evidence, makes a decision - very much like a judge. His or her decision settles the dispute. By law, the decision of the arbitrator is final and cannot be overturned on appeal unless the arbitrator exceeded his or her authority of did something dishonest or illegal.

A non-binding arbitration does not result in a final settlement unless all parties to the dispute voluntarily accept the arbitrator's decision. In essence, the decision in a non-binding arbitration is advisory and reflects how the arbitrator thinks a judge would rule. Sometimes a non-binding arbitration helps the parties come to an agreement without proceeding further in the lawsuit.

As in court cases, there is a trial in an arbitration if the dispute is not resolved in advance of a trial. Prior to the trial, the parties typically submit summaries of the facts they expect to prove and their major arguments. The process at trial in an arbitration is about the same as in a court proceeding. Witnesses are sworn to tell the truth and give testimony. Parties submit documents and exhibits to back up their claims. However, the rules in arbitration are much more informal and far more flexible than in a court proceeding. Technical rules of evidence that bind a judge can be ignored in an arbitration.

After the arbitrator hears the testimony and considers the evidence (the exhibits) he or she issues a decision and informs the parties of it, generally sometime after the trial. Unlike judges, an arbitrator does not have to explain or back up his or her decision. Typically, the arbitrator announces the result only - that is, who wins and how much the winning party gets in money.

Mediation
The procedure in a mediation is very different from that in an arbitration. There is no trial in a mediation and the mediator usually meets with the parties separately until after there is a settlement if one is reached.

In a mediation, the parties typically sit in separate rooms during the mediation process. The mediator receives information in advance from each party telling the arbitrator that party's version of the facts and arguments, which the mediator reviews before the mediation. During the mediation, the mediator meets separately with each party to gain a better understanding of their positions and what is acceptable to each to settle the dispute.

After meeting with the parties one or more times, the mediator gives each party his or her analysis of that parties case. The mediator also makes a recommendation to each party on what would be a realistic and fair settlement.

the process of shuffling back and forth between the parties continues until there is agreement on a resolution of all issues - a settlement - or until everyone agrees a settlement cannot be reached.

Advantages of Arbitration and Mediation
Generally, arbitration and mediation are significantly cheaper than a court proceeding. Arbitrators and mediators are paid by the hour for their services and there generally is a significant fee in an arbitration if it is conducted by an organization such as the American Arbitration Association. However, there are few other costs. Because both arbitration and mediation are far simpler and more flexible, they are many times faster than a court proceeding, which greatly reduces the cost.

It follows that there are many reasons for promoting arbitration and mediation as alternatives to a court proceeding. Courts are beginning to insist that parties to a lawsuit must attempt non-binding arbitration or mediation before the lawsuit will be allowed to proceed to trial. But currently, judges allow the court process to continue for an extended period before the parties must attempt arbitration or mediation. It may be that arbitration or mediation should be required early in a court proceeding. Combined with other proposed reforms - initial disclosures and a fact summary service, both described above in this chapter - early arbitration or mediation could become much more feasible than they are currently.

To make arbitration and mediation affordable for parties in a lawsuit, partially funding them with public funds could be very cost effective in making justice far more available and in reducing the cost of maintaining our very expensive court system. One possibility is to pay retired judges an amount, say $35,000 per year, in addition to their retirement salary for services as part-time arbitrators and mediators. These services could be provided to parties in lawsuits at no charge if a settlement is reached and at moderate cost if there is no settlement. It is worth considering.

Curbing Abuses
Court provided independent experts to recommend damages awards to judges and juries will make the very expensive services of expert witnesses far less useful. The use of independent expert witnesses on property distribution issues and on child custody and visitation issues in dissolution cases also would make the services of party expert witnesses of doubtful value and thereby eliminate the expense of countering their testimony. Independent expert witnesses should have no connection with government agencies to assure they are not influenced by them.

Unjustified lawsuits by lawyers and their clients can be discouraged and greatly reduced by fines if the case is found to be meritless. Adoption of the English Rule that gives the winning party the right to recover their attorneys fees from the losing party also will deter meritless lawsuits.

Public officials who abuse their power in actions to deprive a parent of custody of a child should be heavily penalized. So should judges who wrongfully permit a child to be taken away from his/her biological parents. The rule that children should not be separated from their biological parents except for grave and weighty reasons needs to be greatly strengthened.

The excessive use of contingent fee litigation can be discouraged by promulgating rules applicable to these cases such as: (1) require lawyers to keep track of the hours they spend on each contingent fee case; (2) limit what a lawyer can charge in a contingent fee case to twice his regular hourly rate; (3) establish the requirement that the court will limit a lawyer's compensation in a contingent fee case to what is reasonable; (4) make the English rule that the loser pays the fees and costs of the prevailing party applicable to contingent fee cases; (5) allow contingent fee cases only in a few categories such as personal injury and only when the charging party cannot afford to hire an attorney at an hourly rate.

Empowering the Poor
Providing able public defenders who have the resources they need to effectively represent poor defendants charged with a crime, or poor parents who face the loss of custody of a child, will substantially reduce the agony and huge expense of wrongful imprisonments, and the pitiful damage to parents and their children of separating them, as well as the millions of dollars for foster care and related services paid for by taxpayers. Keeping families together, like keeping innocent people out of jail, reduces overall government spending by significant amounts.

Authorizing defendants, if they choose, to submit the results of lie detector tests to the judge in non-jury cases can help dispose of hundreds, perhaps thousands, of cases where the entire evidence is the conflicting statements of the adversaries - "he said vs she said." The decision in these cases often is based on who is the better liar. Lie detector tests are routinely used by the Federal Bureau of Investigation (FBI) and even by police departments in internal investigations, and even by some commercial companies when the subject has consented. A judge may or may not be persuaded by the results of a lie detector test, but at least give the defendant (or party) the option of submitting such evidence to the judge.

Smile, Judge, You're on Candid Camera
[This is a digest of the chapter in the book]
Disrespectful treatment by judges of people and lawyers who appear before them will be greatly reduced if the judge knows he/she is being videotaped. The judge will be videotaped in every court hearing a manner that will not disrupt or distract any hearing.

Videotaping a court hearing without disruption or distraction can be accomplished easily by installing video cameras in unobtrusive places accessible only to court personnel. Court administrator's office will not be allowed to release any videotape except as permitted by a law, rule or court order. Videotaping will improve the quality of court hearings.

Everyone who appears before judges will have the right to get a videotape of a hearing involving him or her delivered by the court administrator's office directly to the Judicial Standards Board, the state agency that has the power to discipline judges when they misbehave. They also will have the right to have the judge's conduct reviewed.

Replace Incumbent Judges
[This is a digest of the chapter in the book]
There is only one way to persuade judges to change their attitude: boot them out of office. That will not be easy. In fact it will be very hard to do.

Practicing attorneys fear running against an incumbent judge because they know running against the "incumbent" generally is a lost cause and because judges retaliate against challengers. But there is a way to defeat incumbent judges without forcing practicing attorneys to suffer heavy damage to their careers.

In the movie "Brewster's Millions", Richard Prior plays the part of a millionaire who conducts a political campaign in which he urges people to vote for "None of the Above." They did and None of the Above won. Voters can defeat incumbent judges and force them from office by voting for the same fictitious person. Voters can write in the name of a fictitious person in the space for a write-in vote just below the name of each incumbent judge who is running for re-election and has no opponent.

According to the Minnesota Secretary of State, each write-in vote must be counted even if it is for a fictitious person. If the majority of votes is for a fictitious person that person is declared the winner. Because the fictitious person doesn't exist, the office becomes vacant. (Office of the Secretary of State, Elections, 651 215-1440; Minn. Laws, § 204C.19) In the case of a judgeship, that means the governor appoints a replacement.

Mickey Mouse is our candidate. He is an honest fellow who has a good sense of humor. You may wonder about his qualifications to be a judge. Actually, it doesn't make any difference. If you are like most voters, you don't know anything either about the qualifications of the judge who is running for re-election. However, you may feel squeamish about voting for a cartoon character. An alternative is "New Judge." His qualifications are the same but his name is more dignified. This matter is open for comment.

Other Proposed Legal Reforms

Conclusion
[This is a digest of the chapter in the book]
Most Minnesota judges, led by the justices of the Minnesota Supreme Court and the judges of the Minnesota Court of Appeals, are in the main tyrants. They have shackled society to serve the insatiable and never-ending thirst of the ruling elite for more money and power. Only you, the people, acting in concert, can defeat these dictators and their masters and reclaim our liberty and our right to what is guaranteed by the United States Constitution: equal justice for all.

 

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