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Benshoof’s impartiality reasonably called into question, Supreme Court finds
The Minnesota Supreme Court has always been guided by the principle of safeguarding public trust and confidence in the courts.
That principle was tested recently in State v. Malone, where a 5-2 court last week ordered a new trial, after finding that Beltrami County District Court Judge Paul Benshoof’s impartiality was reasonably called into question.
Benshoof investigated facts not on the record, announced those results to the parties and relied on them in denying a motion to dismiss, the majority said in an opinion written by Justice Gordon Moore III. The judge’s inquiry went directly to the state’s burden of proof, the court noted.
“For our legal system to maintain the confidence of the public, and for the public to accept and abide by judicial decisions, the Judicial Branch must aspire to and exemplify both the reality and appearance of justice in every case. (Cites omitted.) Therefore, the risk of undermining the public’s confidence in the judiciary is the predominating factor in determining the relief warranted here,” Moore wrote.
Justice Anne McKeig dissented, joined by Chief Justice Lorie Gildea, saying a new trial was not warranted.
In 2018, Malone was charged with domestic assault involving his wife and a pretrial domestic abuse no contact order, or DANCO, was issued. About a month later, Malone pleaded guilty to disorderly conduct and was sentenced to a stayed jail sentence and one year probation. He was ordered to comply with a probationary DANCO. That order was not served in the courtroom but was signed by the judge later.
In January 2019, Malone was pulled over for a driving infraction and his wife was in the car. He was then charged with knowingly violating the non-contact order. (Malone’s wife was charged separately.) He pleaded not guilty, arguing that the state did not prove that Malone had knowledge of the probationary DANCO at the time of the traffic stop.
Benshoof did not believe that Malone was truthful, noting that the county’s procedures are to e-file DANCOs with counsel and also mail them to the defendant. The judge suggested that the state might need to call a witness to testify to the court’s procedures. The state then stated it might amend its witness list to include the clerk of court.
After a recess, the defendant moved to remove the judge for bias, arguing that Benshoof had claimed knowledge of a disputed fact, contacted a possible witness and listened to audio of the arraignment on the domestic assault charge. The county prosecutor then said that the case “may be a bit cleaner, procedurally,” if tried before a different judge.
Since Benshoof then was the 9th Judicial District’s chief judge, Assistant Chief Judge Tamara Yon heard the motion. The evidence included emails and instant messages between the judge and the judge’s court clerk about the DANCO procedures. Benshoof also received a screen shot from a court operations associate showing that the DANCO was e-served on counsel and that the email appeared to have been opened. There were also communications about who would testify at the motion hearing.
Yon denied the motion to disqualify. She did not agree that Benshoof had conducted an improper investigation that produced evidence favorable to the state, and said that Benshoof already knew of the court’s process. Malone was convicted by a jury and sentenced to consecutive 15-day jail terms on the DANCO violation and for another charge not before the Supreme Court. The Court of Appeals affirmed.
The Supreme Court granted review on one issue: whether the judge was disqualified by the Code of Judicial Conduct from presiding over Malone’s no-contact order violation case.
Impartiality reasonably in question
The Supreme Court said the judge should be disqualified. It analyzed the case under Rule 2.11 (A), which says that a judge should disqualify himself or herself whenever the judge’s impartiality might reasonably be in question, and under Minn. R. Crim. P. 26.03, which says a judge cannot preside if disqualified.
It first rejected the state’s argument that Malone was required to file a petition for a writ of prohibition to challenge the denial of his motion to disqualify the judge. According to caselaw, Moore wrote, a writ is unnecessary where the motion to remove is for cause.
The court agreed with the analysis of impartiality set forth by the defendant. Moore writes:
“Malone points to the judge’s investigation into the service procedures used by court administration in Beltrami County District Court service procedures, the judge’s communication to the parties of the conclusions drawn from that investigation, the judge’s suggestion that the state might want to consider calling a second witness to testify as to the service procedures, the judge’s reliance on these conclusions in ruling on Malone’s motion to dismiss for lack of probable cause, and the communications passing through the judge’s chambers about the identity of a potential witness,” it found to conclude that impartiality could be questioned under Rule 2.11 (A).
The court disagreed with the Court of Appeals’ conclusion that the error was harmless because the jury, not the judge, was the factfinder at trial. “We reject any implication … that a jury trial necessarily cures the error of a judge presiding over a case from which that judge is disqualified” the court said, adding:
“Given the breadth of Rule 2.11(A), we reject the notion that a jury trial can cure the error of a judge who presides over a trial in violation of Minn. R. Crim. P. 26.03, subd. 14(3), because the judge was disqualified.”
Significant risk to public confidence
The court then turned to the question of relief. Reversal is not automatic when a judge is disqualified because of a reasonable question of impartiality rather than actual bias.
In a footnote, the court wrote:
“We … recognize the challenges that District Court judges encounter when the same party comes before them in multiple cases and sometimes in the context of a problem-solving court such as the Batterers Intervention Program here. We are mindful of these dynamic circumstances in reaching our decision here, and our analysis of the factors involved is not intended to chastise or impugn the reputations of any of the District Court judges involved.”
But this case does require reversal, the court continued.
“We conclude that the result of the judge’s affirmative actions of investigating the service procedures, announcing those findings to the parties, and relying on those findings when ruling on a motion so significantly risks undermining the public’s confidence in the fairness of our judicial system that we must reverse.”
Risk not so severe
The dissent found reversal unwarranted, even assuming without deciding that the judge’s conduct gave rise to a reasonable question as to impartiality.
The proper remedy depends on the risk of injustice to the parties, of injustice in other cases and of undermining the public’s confidence in the judicial process, the dissent says. The majority opinion is based on the third factor, McKeig wrote, and the other two factors were not considered.
“The risk of undermining the public’s confidence in the fairness of our judicial process is not as severe as the majority makes it out to be, and when the other two factors are also considered, the totality of the factors weigh against reversing Malone’s conviction.”
The actions of the judge were not as serious as those found in the Minnesota Supreme Court’s 2012 State v. Pratt precedent, which the majority relied upon in its decision to reverse. That case involved disqualification of a retired judge retained as an expert witness by prosecutors, and the dissent found it to be inapposite.
Commenting on Benshoof’s role in the Malone case, McKeig continues:
“[T]he judge simply confirmed the service procedures in the county. This was something that he reasonably could have known, even if he did not know whether service occurred via the standard procedure in this instance. Although the judge communicated his findings directly to the parties, he did so to both parties and not to one party or the other.” (Emphasis by court.)