A panel from the Board on Judicial Standards recommended a stiff sanction against Tax Court Judge George Perez on May 10, although it wasn’t as strong as the BJS requested. But it was stronger than the sanction that Perez told the panel he would accept.
The panel recommended that the judge be censured and suspended without pay for nine months because the panel determined he committed judicial misconduct by failing to decide cases within three months as required by Minn. Stat. sec. 271.20 but certifying that he had complied with the law in order to get paid.
The panel also recommended that Perez be directed to limit his participation in professional organizations as necessary to ensure timely performance of his judicial duties, that he not serve as chief judge, and that he submit monthly status reports to the chief judge.
But the board also found that some of the BJS’s charges against Perez were not proven. The case will have to go to the Minnesota Supreme Court since the panel recommended discipline in excess of a public reprimand.
One unknown factor in the Perez matter is what Gov. Mark Dayton will do. Perez’s nomination for the current term has been submitted to the Senate, which has not acted on it. The governor’s office did not respond to questions about Perez.
‘He knew better’
The Perez matter has been going on for a long time. The investigation began in 2011 but encompasses cases going back to 1998. Perez has maintained throughout the proceedings that his practices were consistent with other practices on the court, but has also agreed that his cases were late. He argued that the practice was to extend the three-month deadline when post-trial submissions or other events occurred.
The panel categorically rejected the argument, saying that his interpretation of the law would render the time limits meaningless.
The panel noted that one case, Clarence & Pauline Johnson v. Commissioner of Revenue, was submitted March 19, 2009 when post-trial briefing was completed and was extended 11 times, including in response to letters from the taxpayers asking for a decision. It was decided on March 1, 2010.
Another case, Dynamic Digital Design v. Commissioner of Revenue, was submitted for decision July 29, 2002. On October 25, Perez had a staffer call the taxpayer to request an extension because of illness. He did not issue a decision until Jan. 14, 2004.
“And so it was with eight of the remaining nine cases referenced in the complaint,” the panel said.
The board then moves to the heart of its ruling: Perez’s interpretation of the statute was “neither credible nor sincere.” He should have known that he was not in compliance with the statute, particularly in Johnson and DDD.
“In Johnson, he could not possibly have believed that the taxpayers’ pleading for a decision and requesting his removal for failure to decide the case had the legal effect of extending his deadline …” the panel wrote.
“He knew better,” the panel said.
Those words by the panel may explain the recommended nine-month suspension.
“Any time any professional board finds you’ve not been straight with them, it’s going to be a six-month suspension at a minimum. So nine months doesn’t surprise me,” said Arden Hills attorney Richard Thomas, who frequently represents professionals in discipline proceedings.
They also explain why the BJS may continue to push for removal from office when the case goes to the Supreme Court, said its attorney, Doug Kelley. He noted that the panel found a long-standing pattern of misconduct and no acceptance of responsibility or remorse from the judge during the hearing. It also found that Perez made false statements in his opinions about when the cases were submitted. “That’s of grave concern to my client,” Kelley said.
Kelley also said that the panel found that Perez knew that his certifications that the cases were timely were false in at least five cases. Kelley did the math on those cases, looking at when the decisions were due (according to the panel) and when they were submitted. That encompassed 101 pay periods, Kelley said. Using a rough estimate of the judges’ pay, Kelley contends that Perez wrongfully received over $450,000 from the state.
‘Lack of oversight’
The panel also discussed to what it termed the “lack of oversight of the timeliness of the Tax Court’s decisions.” The Perez case has focused attention on the court, with characterizations of it ranging from “lack of oversight” to “systemic deficiencies” to “needing a lot of help.”
The Supreme Court has criticized the Tax Court on occasion and the high court opinion’s demonstrate the need for a “cultural change,” Justice Paul Anderson said in a December, 2012 Minnesota Lawyer story about the court.
And the governor’s budget appropriated a 20 percent increase in funding for the court that now has no law clerks, no access to Westlaw or LexisNexis and what Perez has called minimal staffing and technology.
The Perez case panel noted that Perez’s tardiness was well-known over a long period of time by justices and staff at the court as well as practitioners. However, the statute provides no mechanism for forgoing the statutory deadline and does not give the chief judge any authority to enforce the time limits. “[L]ack of oversight may have facilitated and prolonged Judge Perez’s ability to engage in the misconduct,” the panel wrote.
But who should “oversee” the Tax Court raises some constitutional questions, said Perez’s attorney, Fred Finch. The court is technically part of the executive branch and not the judicial, and the state court administration lends no assistance to the tax court. “The court is kind of an orphan, deprived of the state’s administrative expertise. [Otherwise] it’s unlikely this would have happened,” Finch said. But for the court system to “oversee” the Tax Court would violate the separation of powers, he said.
But not all of the panel’s conclusions were critical of Perez. The panel termed itself “perplexed by the Board’s repeated emphasis on Judge Perez’s use of his vacation days and sick leave.” Perez did not take any time off to which he was not entitled and the board did not show that his illnesses were not genuine.
It concluded that the board did not prove Counts II or III of the complaint. Count II alleged that Perez refused new assignments. For a period of time Perez took every fifth case that came in instead of every third case. “A lot of people removed Judge [Sheryl] Ramstad and those files went to Perez so he changed the rotation,” Finch told Minnesota Lawyer last February. (Judge Ramstad has since left the court.) Near the time that Perez changed the rotation, he also had surgery and the state government was shut down.
The panel also said that the BJS did not prove Count III, which charged him with making false representations to the board and failing to cooperate. “The Board’s argument, in fact, at least overstates and in some instances misstates the exchange between Judge Perez and the Board after this inquiry was commenced,” the panel said. “He was not required to project what information the Board might want that it hadn’t actually requested.”
The nine-month suspension recommended by the board appears to be the longest suspension given to a judge in at least the last 10 years. In 2011, Judge Patricia Karasov was suspended for six months for moving out of her district and attempting to conceal it, and Judge Timothy Blakely was suspended for six months for negotiating and obtaining a substantial legal fee reduction from his personal attorney while contemporaneously appointing her to provide mediation or related services in matters pending before him.
The only longer suspension that Minnesota Lawyer could confirm was nearly 25 years ago, when Judge Alberto Miera was found to have abused his office by making unwelcome sexual advances to his court reporter. The BJS sought to remove Miera from office.
In Perez’s case as well, the BJS requested that Perez be removed from office. The Supreme Court has removed three judges, Harvey Ginsberg, Crane Winton and Jack Gillard. Ginsberg and Winton were convicted of crimes and Gillard’s misconduct occurred when he was an attorney and injured more than a dozen clients. (He was also disbarred.) Perez did not make any misleading statements to the BJS and committed no criminal conduct. “All of his misconduct had to do with his delay in deciding cases, aggravated by his certifications that he was in compliance with Minn. Stat. sec. 271.20,” the panel said.
But the panel also said that Perez’s misconduct was more severe than Karasov’s and thus increased the suspension. “The egregious pattern in this case needs to be recognized and dealt with in a manner than will promote confidence in the judiciary and deter such behavior in the future,” it concluded.
And although the panel found that Perez did not misuse his time off, it also recommended that he be limited in his bar association activities. This raises questions under the First Amendment’s freedom of association provision as well as under the separation of powers, Finch said.
It also recommended that he not serve as chief judge, although Minn. Stat. sec. 271.02 grants the judges the power to elect their own chief, Finch noted.