Judicial Standards Board overrides panel, votes to remove Blakely 

Posted: 1:00 am Mon, May 18, 2009
By Barbara L. Jones

In Dakota County, Judge Timothy Blakely is in the unusual position of carrying on business as usual as he waits for the state Supreme Court to decide whether or not to strip him of his robe.

In a much publicized opinion released last week, the Board on Judicial Standards recommended to the high court that it remove the 1st District judge, who was first elected to the bench more than a decade ago. The recommended sanction is much sterner than the censure and six-month suspension recommended by the three-judge panel that originally heard Blakely’s disciplinary case.

Ironically, new judicial-standards rules that would have made such a substitution of judgment impossible are only six weeks away from taking effect.

The conduct at issue arose out of Blakely’s divorce from 2002 to 2004. Blakely got a substantial discount on his legal fees — more than $60,000 — after steering mediation and other work from his courtroom to his divorce attorney and implying in a chain of e-mails that he would continue to refer work to her in the future.

The investigation against Blakely commenced in April 2007. The fact-finding panel — composed of Lawrence M. Redmond, retired Hennepin County District Court Judge Allen Oleisky and retired Supreme Court Justice Edward Stringer — heard two days of testimony last November.

Although the board accepted the panel’s fact findings, it substituted its own recommendation as to discipline, saying that removal from the bench is needed to assure that conduct such as Blakely’s will not be condoned and to restore public confidence in the judiciary.

Blakely’s attorney, Thomas M. Kelly of Minneapolis, said that he and his client expect the appellate process to proceed and hope that the Supreme Court will look independently upon the record. He said that Blakely believed a private reprimand would have been sufficient punishment and deterrence.

Meanwhile, the judge is carrying out his responsibilities, Kelly said. “He’s concerned about this, but he’s not letting it interfere with the performance of his duties,” Kelly said.

An expensive divorce

Blakely incurred a total of $108,776 in legal fees for his divorce representation and paid about $45,000. The firm wrote off around $63,000. Blakely’s personal attorney for most of the representation was Christine Stroemer of the firm of Collins, Buckley, Sauntry & Haugh PLLP in St. Paul.

Blakely said in written statements in the disciplinary proceeding that the mediation referrals and the fee negotiations were not a quid pro quo. However, in correspondence to the board in 2007, Blakely acknowledged that a reasonable inference could be drawn from his e-mail correspondence to Stroemer that he was offering business referrals for the firm in exchange for a reduced fee on his divorce representation. He also added in the letter that he “did not recall” that being his intention.

In a letter to Minnesota Supreme Court Chief Justice Eric Magnuson accompanying its recommendation that Blakely be removed from office, the Judicial Standards Board noted several considerations:

• Blakely acknowledged using his position to obtain a fee reduction. Blakely testified during the hearing that “I had the right and the duty for my family to have this bill dealt with in the only way I knew how and the only thing I had.”

• Blakely changed his position from that initially taken with the board. During the investigation Blakely agreed that there was an appearance of impropriety, but during the hearing said that there would not be a reasonable inference of impropriety to any fully informed person.

• At the hearing Blakely took the position that a judge may make personal referrals for friends or business acquaintances, even if it furthers his own interests. This is contrary to the board’s position and makes a repetition of his misconduct a more likely possibility.

• Blakely failed to admit that his conduct was improper and refused to take responsibility for his actions.

Under current procedural rules, the board is free to substitute its own judgment on discipline for that of the panel, as it did in this case. Under new rules that take effect on July1, the board or the judge would have to appeal the panel decision to the Supreme Court.

The 10-member board’s decision to substitute its own sanction for the three-judge panel’s drew a dissent from two of those members — Court of Appeals Judge Jill Flaskamp Halbrooks and Minneapolis attorney William J. Egan, who both agreed with the panel’s recommended discipline.

“[W]e think the Board should accord some level of deference to an experienced panel’s collective judgment on the issue of discipline. Although we share our fellow board members’ views that Judge Blakely’s conduct certainly warrants the most serious of sanctions, we see nothing in the record or the panel’s written findings to support a conclusion that the panel did not exercise sound judgment in recommending censure and suspension without pay in this case,” wrote the dissenters.

Reaction in the legal community to Blakely’s travails was subdued. St. Paul attorney Richard Thomas, who has criticized the board’s procedures in the past, said the decision to substitute the board’s decision for the panel’s illustrates why the new rules were needed.

Others were not surprised at the board’s decision, perhaps because the panel’s recommended sanction was viewed by some as generous.

Disagreements about sanctions are not uncommon, said Cindy Gray, director of the Center for Judicial Ethics at the American Judicature Society. While each state is different, it is not uncommon for a board to reject a fact-finding panel’s recommendations, she said.

“The judge’s conduct in the proceedings is important,” Gray said. If the judge is not remorseful, a disciplinary body generally will not react well. “A refusal to acknowledge mistakes is not something that gives assurance that it won’t happen again,” she said.

Removals from the bench are rare in Minnesota. Blakely would be only the fourth judge to be removed from office in Minnesota for misconduct since 1972. The most recent was Judge Harvey Ginsberg, who, grappling with anger-management issues, was found to have mental illness that prevented him from functioning as a judge. The other two were Robert Crane Winton and F.C. Gillard.

In 2008, as a result of state judicial discipline proceedings across the country, 13 judges were removed from office, one former judge was barred from serving as a judge again, one judge was found to be permanently disabled, one judge was permanently retired and two were suspended without pay until the end of their terms, according to Gray. Eleven judges resigned (or retired) in lieu of discipline pursuant to agreements with judicial conduct commissions that were made public, she said.

It was reported that the Lawyers Professional Responsibility Board is investigating Stroemer for violating lawyers ethics rules and for assisting Blakely to violate the Code of Judicial Conduct. Stroemer could not be reached for
comment.

If he is not removed, Blakely is up for re-election in 2010.