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Proposal would abolish peremptory removals

Plan seeks to end practice of judge shopping

Author / Coordinator: Alice Sherren Brommer
Minnesota Lawyer
October 1999

The Conference of Chief Judges is considering a proposal that would eliminate lawyers’ right to peremptory removal of judges in civil and criminal trials.

Currently, attorneys can have the first judge assigned to their case removed without offering any reason for their request. Subsequent removals require a showing of cause, such as prejudice on the part of the judge.

The proposal — drafted by the conference’s Administration Committee — seeks to abolish the first removal category and to require that cause be shown for all removals.
The conference has referred the controversial initiative to the Supreme Court’s General Practice Rules Committee, which plans to seek the input of bar groups and individual lawyers. A decision about whether to press ahead with the measure in its present form will be made after all the feedback is received.

“From an administration of justice viewpoint, removal can wreak havoc and halt the wheels of justice,” said 1st Judicial District Chief Judge Leslie Metzen, the chair of the Conference of Chief Judges. “If it happens once a month we can live with it. If it happens on three or four cases every couple of days it’s a huge problem.”

Although the proposal was only forwarded to the Rules Committee a few weeks ago, the idea of reform of the removal system has been in the air for some time, according to Metzen. “The Conference of Chief Judges has been looking at the issue of removal for at least the last four years,” the chief judge told Minnesota Lawyer. “[The issue] keeps coming up. This spring the issue was raised again and we spent several months drafting the proposed rule.”

However, despite the recent movement on the proposal, Metzen stressed that “we’re really in the preliminary stages of opening up the dialogue.”

Second group

One problem with the current removal scheme is a lack of uniformity between courts, according to Metzen. Indeed, there are several different removal laws in effect in Minnesota’s various state courts, including Civil Rule 63.03; Criminal Rule 26.03 subd. 13(4); Minn. Stat. sec. 542.16 subd. 1 and 2; Juvenile Del. Rule 22.03; and Rule 106 of the Rules of Practice for District Court.

Metzen said that even if the proposed rule is not adopted — whether from lack of attorney support or otherwise — she hopes that the different rulemaking bodies will at least be able to come to a consensus that one uniform removal rule is all that is needed for all the state’s courts.

A number of other potential glitches present in the existing system have been identified by another group studying removals — the Supreme Court Advisory Committee on the
Rules of Civil Procedure.

The Advisory Committee — which has labeled removals “an ongoing area of concern to the bench and bar” — plans to discuss the issue of removals at its next hearing on Nov. 17, 1999. The committee specifically referred to several problematic situations involving current removal practice, including the use of removals:

• in multiple-party litigation where multiple plaintiffs or defendants could exercise a right to remove seriatim and thereby accomplish an extraordinary level of judge shopping and, in some counties, remove any local judges from the case;

• on judges who have been assigned by the chief judge of the district;

• in cases specially assigned by the Minnesota Supreme Court, such as the asbestos litigation, the silicone breast implant litigation, etc.; and

• in cases where new parties are brought in by amendment or supplementation of the pleadings.

The Advisory Committee pointed out that “[t]he courts have a clear need to allow removal of judges to occur with a minimum disruption of the normal judicial assignment processes, and the current rule may not work optimally in this regard.”

Although the committee plans to discuss eliminating peremptory removals at its Nov. 17 meeting, it does not expect movement at that time.

Election woes

Another potential problem with preliminary removals is that, because they are made without a showing of cause, they are open to the charge that the motivation was political.
For example, former Ramsey County District Court Judge Walter Bowser asserted that his challenger, attorney Judith Tilsen, orchestrated a removal campaign against him in order to make him look bad in the election. Tilsen went on to defeat Bowser and is now a Ramsey County judge.

Although the removal rules don’t require an attorney to give an explanation for seeking removal of a certain judge, Tilsen, who had worked both as a prosecutor and in the Public Defender’s Office, told Minnesota Lawyer in an October 1998 interview that she removed Bowser due to his lack of criminal experience.

Kandiyohi County

A Minnesota Supreme Court case decided earlier this year exemplifies one of the most vexing problems that peremptory removals can present to a court administrator — the blanket use of removals.

The Minnesota Supreme Court concluded that “blanket filings” are an unwarranted use of peremptory removal and suspended a prosecutor’s office from using the rule for six months.

The Kandiyohi County Attorney’s Office filed notices of removal in 161 of 254 felony and gross misdemeanor cases assigned to District Court Judge John C. Lindstrom between Jan. 1, 1994 and Aug. 20, 1997, and in 240 of 334 misdemeanor cases from Jan. 1, 1995 to Aug. 20, 1997. The office had started filing the removals after an adverse ruling by Lindstrom in a juvenile matter.

The question of whether such “blanket removals” were proper was raised when two defendants charged with gross misdemeanor driving while intoxicated and other driving offenses filed a joint motion to prohibit the removal of Judge Lindstrom, who was initially assigned to hear both cases. The basis of their motion was not only to contest the removals of Lindstrom in their own cases, but also to challenge the County Attorney’s Office’s policy of removing Lindstrom from nearly all criminal cases to which he was assigned.

The trial court judge denied the motion, although he expressed hope that the notices to remove would be “used sparingly” in the future. After the Court of Appeals denied a petition for discretionary review, the Supreme Court granted review.

The Supreme Court concluded that the Kandiyohi County Attorney’s Office had abused the peremptory removal rule.

“The County Attorney’s Office’s excessive use of Minn. R. Crim. P. 26.03, subd. 13(4), is prejudicial to the administration of justice and contrary to the spirit of the rule,” wrote Justice James H. Gilbert. The court went on to suspend for six months the privilege of the Kandiyohi County Attorney’s Office to exercise peremptory removal.

While concluding that “blanket filings are an unwarranted use [of the rule] and constitute an abuse,” the Supreme Court stopped short of laying down rules as to what a proper use might be.

The Supreme Court decision has created some confusion among members of the bench and bar, who now know that some uses of peremptory removals will be found improper, but have no clear guidance as to when that will be the case.

The Kandiyohi County case also illustrates some of the administrative burdens that removal can cause courts, particularly in smaller counties.

The removal practices of the Kandiyohi County Attorney’s Office disrupted the administration of the courts in the county. In order to prevent the removals, the clerk began keeping Lindstrom off the criminal calendar.

Moreover, since there are only three judges in Kandiyohi County, each removal affected the caseload of both the removed judge and the then assigned judge.

Because the proposal is still in its preliminary stages, the chief judges’ conference has not yet set a schedule for when a final draft will be completed.

Trial attorneys express reservations about removal plan

Trial attorneys contacted by Minnesota Lawyer expressed strong reservations about the proposal to do away with peremptory removals.

Keith Miller, president of the Minnesota Trial Attorneys Association, told Minnesota Lawyer that he opposes the proposal.

“I’m leery of this proposed change,” said Miller. “There is a potential for conflict between the bench and the bar, and a greater potential for unpleasantness.”
Attorney Robert Schwartzbauer of Minneapolis also said that he prefers the existing practice on removals.

“The current law is good because many times [removal is] based on the prior history of the judge’s decisions — not a conflict situation,” Schwartzbauer observed. He added that even though the judge isn’t necessarily biased, it is often not in the client’s best interest to try the case before a particular judge.

Schwartzbauer likened the peremptory removal of judges to peremptory strikes of jurors. “It’s really allowing a certain amount of judge shopping, but I don’t think that’s terribly abusive,” he explained. “While it’s a possible evil, it’s not a serious evil,” he said.

The general consensus among attorneys who spoke with Minnesota Lawyer was that the removal rule is rarely used improperly.

Miller went so far as to say that in some circumstances a lawyer would be wrong not to seek removal.

Miller, who practices law in Moorhead, pointed out that personal disagreements that go back many years can create sticky situations because it’s “human nature” to harbor resentment. “If there’s some history between the lawyer and the judge, particularly in rural areas, it would be inappropriate — a violation of ethical duty — not to remove the judge,” he explained. “When there are bad feelings between people as lawyers for 20 years, when one becomes a judge it’s hard to put that behind you just because you’re wearing a black robe.”

Minneapolis attorney Peter Riley, Treasurer of the Minnesota Trial Lawyers Association, also said that he has some real concerns about the proposed change.

Under the proposed law, an attorney would have to allege bias in order to file for removal, but the judge that is filed against would also have the opportunity to respond in an affidavit, noted Riley. Therefore, regardless of whether actually removed from the case, the judge would be aware that a certain lawyer believes, or at least claims, that he or she is biased, Riley stated.

Riley questioned whether a judge who has been unsuccessfully filed against for removal would be able to preside over the case without bias.
“I think it [would require] a super-human effort of any judge to put that out of their mind completely,” he observed.

Even if the not-removed judge fairly decides the case and is completely justified in his or her ruling, there would be a perception of bias, according to Riley. If the judge found against the attorney who unsuccessfully filed against him or her, that attorney would perceive the decision as proof that the judge really was biased. But if the judge found for that same attorney, opposing counsel would perceive the decision as overcompensation on the part of the judge.

Riley speculated that the chilling effect of having to allege and prove bias in order to remove a judge would discourage attorneys from filing against a judge even when justified.

Woodbury attorney William Harper’s reaction to the proposal was very clear and very strong.

“I think it’s a terrible idea,” said the former MTLA president. “[Eliminating peremptory removal] supposes ipso facto that there are no judges that are incompetent, and that’s not the case.”

Criminal defense attorney Allan Hart Caplan called preemptory removals an integral part of the criminal justice system.

“Judges are only human,” Caplan explained, noting that certain judges have proclivities that make them biased against certain client’s situations. “I am totally in favor of a defendant having an opportunity to remove judges,” he said.

Ending peremptory “would be awful,” said attorney Joel Rath of Edina. “Some judges are not appropriate for certain cases — and peremptory removal is the only option.”

Attorney Daniel Goldberg of Minneapolis said he’s strenuously opposed to the change.

“It’s difficult for lawyers to tell judges to their face that they’re incompetent,” said Goldberg. Attorneys often dig a deeper hole by accusing a judge of prejudice or bias, he added.

Attorney Joseph Crumley, the legislative chair of the Minnesota Trial Lawyers Association (MTLA) advised members of the bar not to remain silent on the issue.
“I think [the proposal is] of interest to every lawyer,” he said