Bold Reforms Proposed in Senate Judiciary Committee Hearing

Bold Reforms Proposed in Senate Judiciary Committee Hearing


Several bold judge and court reform proposals were made and discussed at a hearing of the Senate Judiciary Committee on November 17, 2011.  Among these proposals are:


1.  Senator Scott Newman – Mandatory retirement statute – revise the statute to require that judges serve their full term or the remaining part after they reach the age of 70 which would result in  open, competitive elections of their successors by the voters


2.  Incumbent designation – eliminate the designation “incumbent” below the name of an incumbent judge seeking election or re-election to the office of judge.


Senator Newman reminded the committee that Minnesota’s Constitution states in Article VI, Section 7, that judges are to be elected by the voters in the district they serve.  He emphasized that Minnesota is not complying with that provision but rather has a de facto system under which from 90% to 95% of new judges are appointed by the governor thereby depriving the voters of their constitutional right to elect new judges.  Worse, after being appointed, most new judges serve up to two years and then run as the incumbent without any opponent.  He also pointed out that the Minnesota Supreme Court allows appointment of judges just before a general election even though the Constitution requires election of judges by the voters.  Minnesota judges Robert Birnbaum and Jeff Thompson vigorously defended the current mandatory retirement date set by stature and keeping the incumbent designation.  They said that these provisions were required to preserve the judge pension system and let voters know who were experienced judges.


Senator Mike Jungbauer proposed:


3.  Replacing the Judicial Standards Board with a legislative board.  The Minnesota Constitution provides in Article VI, Section 9 that the legislature has the power and shall provide for “the retirement, removal or other discipline of any judge who is disabled, incompetent or guilty of conduct prejudicial to the administration of justice.”  Sen. Jungbauer said that a judge had recently ordered a person to stop publishing an internet blog that was critical of the judge. Judges Birnbaum and Thompson did not believe that such an order had been issued and said that if it had it would be struck down by the Appeals Court. Enclosed is a copy of the order mentioned by Senator Jungbauer.  Clearly, it is wrong and violates the free speech guarantees of the U.S. and Minnesota Constitutions.  The Minnesota Court of Appeals refused to overturn this decision three times.  Attorney Greg Wersal said that filing a complaint with the current Judicial Standards Board is useless – there is no hearing, no testimony, and generally no result.  Senator Dave Thompson expressed his opinion that the legislature “has completely abdicated its authority on the oversight of judges” and “virtually assured that there won’t be the proper supervision of the judiciary” and the legislature ought to be collectively ashamed of that.” Attorney Greg Wersal told the committee that there were good judges but many bad judges – at least 20% who do not follow precedent.          



4.  Ban judges from accepting an unlimited number of secret “gifts” (gratuities, bribes) from lawyers, law firms, and special interests.  Under a code the Minnesota Supreme Court authored and promulgated, the Canons of Judicial Conduct, judges can take such “gifts.”  They probably do not report this income for tax purposes.  Senator Jungbauer mentioned these “gifts.”  He also noted that it is illegal for legislators and employees of the executive branch to accept such gifts and said that the rule ought to be the same for judges.  Judges Birnbaum and Thomson arrogantly laughed during the discussion of these gifts for judges. 


Several senators and testifiers said that voters are starves for information about judges and often call legislators at election asking for information about judges. Currently, there is nowhere voters can get information about judges or candidates for judge.  There is an answer, one that fourteen states not including Minnesota have – performance evaluation of judges and evaluation of candidates for judge and reports to voters before elections of judges.  Voters will be very grateful if they get evaluation and qualification reports just before elections by a nonpartisan, impartial, credible agency.  A draft bill to create such an agency is ready for consideration and introduction.  Please ask about it.


A powerful reform is to enact a statute pursuant to Minnesota’s Constitution Article VI, Section 9 that establishes performance obligations for judges such as to strictly follow U.S. and Minnesota’s Constitutions in all of their decisions, strictly apply all Minnesota statutes enacted by the legislature and signed into law (except for statutes found to be unconstitutional), strictly conform to all court rules of procedure, and faithfully follow court precedent in their decisions, and judge prohibitions such as retaliating against any lawyer or party, separating children from parents except for compelling reasons proven in court trials by substantial evidence, and denying parenting time for any parent except for reasons proven in trial by substantial evidence that visitation is harmful for the child. A related reform is to create a legislative agency that has the power to discipline judges who violate performance obligations or prohibitions by fines, suspension, and even removal in serious cases. 


Meanwhile, many children and parents are being abused by arrogant, insensitive judges, lawyers, and child protection agencies.  Examples are


1.  Lea Banken has not seen or had any contact with her three children, ages 1, 5 and 7, for six months even though she is a completely fit and loving parent and is in extreme anxiety because of this situation.  Her children are being deprived of their mother’s love, care and protection and are in the custody of their father who has a record of abuse of women and children and crimes and whom the children report has sexually molested them.  The only reason for keeping Lea from her children is that she publishes a blog that criticizes Carver County Judge Richard Perkins who in the divorce judgment in August, 2011, awarded all of the marital property, assets and money to Lea’s former husband, Jeremy Banken, a millionaire businessman who paid his lawyer, Christopher Banas, substantial sums for his services.  Judge Perkins has ordered only “supervised” visitation by Lea with her children.  The supervisor is Jeffrey Postuma, an independent contractor who is being paid by Carver County from what is believed to be money from federal funds.  He is assisted by Dan Koziolek, a manager of Carver County Family Services agency.  Under the rules made by Mr. Postuma, all visitation by Ms. Banken with her children must be completely monitored by video and audio recording.  Visitation cannot be at Ms. Banken’s home, only at locations designated by Mr, Postuma, who must be present at all visitation sessions and who controls each session.  Ms. Banken must pay Mr. Postuma $200 for each visitation he allows even though Ms. Banken has no money and is over $40,000 in debt to her former husband as a result of the awards made by Judge Perkins in the divorce judgment.  No “strangers” including maternal family   Enclosed is a copy of Judge Perkins’ order.



2.  Kimberly Sperling – Dakota County Judge Tim Warmager – The wife of a wealthy banker fled the United States after a judge ordered her 13 year old daughter to go to her father’s home for unsupervised visitation even though the father drugged and raped his daughter when she was 11 years old.  The girl and her younger brothers, crying and screaming, went but the girl called the police after a physical encounter with her father and they took her to her aunt’s home. The judge later gave custody of the two boys to the father even though there is evidence that he drugs them every day to keep them under control, subscribes to pornographic services, and once forced his son to take a shower with a young friend which the father photographed.  The mother and her daughter reside in Canada where they are refugees from the United States.  The girl wrote and signed an affidavit under oath which describes her father’s rape of her.  Part of this affidavit is enclosed.  The judge sent the affidavit to Dakota County child protection who never investigated the case or even contacted the girl.


3.  Candelauria Akin – Dakota County Judge Michael Mayer – Candelauria Akin was sexually and physically abused by the father of her eight year old special needs son.  She was the primary caretaker of her son until June, 2010, when Judge Mayer split custody.  He ordered that the child spend a week in his father’s home in South St. Paul followed by a week in his mother’s home in Apple Valley even though mother and father despise each other, do not and cannot communicate or cooperate, have separate medical providers who do not consult with each other hereby putting the child at serious risk, and even though two psychologists, one hired by mother and the other by father, both report that the child is suffering serious anxiety and is very troubled.  Common sense as well as well-established Minnesota Supreme Court case law, prohibits divided custody  unless there is a history of the parents communicating and co-operating.  There is no such history.  Judge Mayer ignored this precedent and refused to follow it or even mention it in his opinion.  The Minnesota Court of Appeals affirmed Judge Mayer’s disregard of this well-established precedent.  This case is being appealed to the Minnesota Supreme Court.



4.  John McGrath – Hennepin County Referee Tim Mulrooney and Judge William H. Koch – John McGrath, “father,” divorced his former wife, “mother.” They are the parents of two children, a girl, 14 years old and a boy, 16 years old.  During the last stages of the marriage, mother had an affair with another man.  In 2007 both mother and father moved for sole physical custody.  Both had psychological evaluations by multiple evaluators.  These evaluators reported that mother’s emotional health and psychological personality were unstaple and that she had characteristics of serious problems.  They reported that father was normal and there was no indication of psychological or emotional problems.  During this time, mother was employed by Hennepin County and was acquainted with county court officials.  Father introduced evidence of several credible witnesses that he was a well adjusted man who was a good and loving parent. However, the guardian ad litem and an untrained social worker testified that father was unsuitable as a parent because he was openly critical of the court and legal process.  Father spent over $200,000 in litigation costs and for attorney’s fees and had to file bankruptcy.  The court awarded sole custody of both children to mother and sharply restricted father’s contact with his children.  Father was especially concerned about his son because mother was forcing him to take drugs to control what she claimed was an ADHD condition.  When his daughter was 13 – 14 years old, she became dissatisfied with mother’s treatment of her, mother’s tirades against father, and decided she wanted to be in father’s custody.  She wrote and submitted letters and then a sworn affidavit to Referee Mulrooney expressing her preference to live with father and be in his custody.  But Referee Mulrooney, backed up by Judge Koch, refused to consider the girl’s letters and affidavit and refused to interview her to hear her preference as authorized by statute.  The referee even ruled that father was a “frivolous litigant” because of his persistent efforts concerning his children and refused to allow him to file court pleadings without permission.  Referee Mulrooney refused to hold an evidentiary hearing on father’s allegations of physical and emotional harm of his children as shown by his son’s excessive truancy from high school classes, being in trouble with the Minneapolis police, failing high school courses, and efforts to avoid taking drugs.  Finally, the girl chose to leave her mother’s home and reside with father in defiance of mother’s threats and court orders.  Referee Mulrooney refused to apply higher court rulings that an evidentiary hearing must be held when a parent credibly alleges harm to his children.  Father appealed to the Court of Appeals.  Meanwhile, the girl resides with father who must pay substantial child support to mother.   


5.  Tim Kinley – Ramsey County Judge Joanne Smith – Judge Smith ruled that reading stories from the Bible to his children was “inappropriate” and ordered Mr. Kinley to stop doing that.  Mr. Kinley appealed to the Minnesota Court of Appeals.  That court ruled that the judge had gone too far.  In an unpublished opinion, indicating that the Appeals Court did not consider it important, the court said that Judge Smith had violated Mr. Kinley’s constitutional rights.  It ruled that there had to be specific reasons before a court can prevent a father from teaching his children about the Bible and sent the case back to Judge Smith to state what those reasons were if there were any.  Mr. Kinley now can discuss the Bible and its teachings with his children.  There was no penalty or consequence for Judge Smith who made this crazy decision.  She is still a judge who continues to make unjust decisions that badly hurt parents and children.


6.  Many counties, judges, court officials, lawyers – parents of many children – Thousands of parents have been denied parenting time with their children leading to widespread support and demand for a law that creates a presumption for joint custody and equal parenting time of children.  Rep. Peggy Scott is the author of HF 322. A proposed law (bill) to establish the presumption of joint physical and equal parenting time.  There are 14 co-authors.  Sen. Gretchen Hoffman introduced a bill, SF 1168 in the senate co-authored by Senators Wolf, Sparks and Hann.  Sen. Wolf also introduced SF for joint physical custody and equal parenting time.  This proposed legislation would revolutionize Minnesota family law.


The outrageous cases summarized above are illogical, uncivilized and even barbaric.  We understand that legislators are reluctant to speak out individually against judges.  However, if you think it is appropriate, we urge you to either (1) contact the Minnesota Supreme Court, express your concern about these cases, and urge that court to review the Banken and Akin cases which were appealed to that court or (2) ask the Minnesota Department of Human Services to investigate these cases and the Sperling and McGrath cases.  We also urge you to schedule a hearing where victims of these unjust court decisions can testify about their experiences in courts and the injustices they have suffered at the hands of judges.  As expressed in books by prominent authors – The Case Against Lawyers by Catherine Crier, The Fraternity – Lawyers and Judges in Collusion –  by former appellate Judge and retired lawyer John Molloy, “On The Make”: Campaign Funding And The Corrupting of the American Judiciary by nationally recognized law professor David Barnhizer, Government by Judiciary by Raoul Berger, Out of Order by Max Boot, The Tempting of America by Robert H. Bork, The Benchwarmers by Joseph C. Goulden, The Litigation Explosionby Walter K. Olson, The Rule of Lawyers by Walter K. Olson, The Collapse of Criminal Justice, by Harold J. Rothwax, A Trust Misplaced by Roy T. Spannus, The Buying of the Bench by Sheila Kaplan and Zoe Davidson, and The Wooing of Our Judges by Abner Mikva.   Power corrupts the best of people, and absolute power corrupts absolutely.  It is not an acceptable answer to allow the continuing abuse of thousands of children and parents and do nothing to stop or inhibit it.  Our society’s character and principles are sick.  If they are not fixed, the people will revolt as illustrated by the occupy movements.


For more info please contact       Dale Nathan                                                        651 454-0506

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