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Justice Paul Thissen, left, is running for his first six-year term after being appointed by Gov. Mark Dayton in 2018. He is opposed by Michelle MacDonald, right, who has run for the court in every election cycle since 2014. (File photos: Associated Press and Minnesota Lawyer)
Justice Paul Thissen, left, is running for his first six-year term after being appointed by Gov. Mark Dayton in 2018. He is opposed by Michelle MacDonald, right, who has run for the court in every election cycle since 2014. (File photos: Associated Press and Minnesota Lawyer)

Why do you want to be a justice?

The marquee judicial race this year is the state Supreme Court contest between incumbent Associate Justice Paul Thissen and challenger Michelle MacDonald.

On Oct. 16, Minnesota Lawyer asked both candidates to fill out an identical six-question survey to sound them out on issues of vital importance to the judiciary.

Both candidates responded promptly—Thissen’s reply arrived on Oct. 17, MacDonald’s on Oct. 19. Here are their answers.

 

1: Has the court’s response to the pandemic and other current criminal justice issues affected the public’s perception of trust and confidence in the court? If not, why not? If so, what steps, if any, are necessary?

Thissen: Trust in all institutions has generally declined in recent years. The court must do all it can to build trust and maintain its legitimacy as a place where people can go to get disputes resolved fairly and in accordance with the law. That requires increasing the transparency of the court’s processes and decision-making. It is the reason I go speak to high school students and civic groups as often as I can. And it is the reason that we have run an unusually active campaign; I see the campaign as a chance to educate Minnesotans about the important work courts do that affect Minnesotans’ lives in the most fundamental ways.

The Minnesota court system has risen to the occasion in response to the pandemic. Most credit is due to the District Courts — judges and staff — which have done a remarkable job of keeping the wheels of justice turning through innovative use of technology and innovative ways of partnering with other community institutions to provide a safe way for justice to be done. I imagine that some of those innovations, which can save both court and party costs, will continue after the pandemic is over.

The larger unrest we have seen in our community since the spring has once again raised critical questions for all of us. The fact of racism has been staring us in the face since before the founding of our country. And as we know, racial disparity is particularly acute and apparent here in Minnesota. There have been many Minnesotans of good will and amazingly heroic leaders who have taken steps to change that reality. But I know that I — and all of us together — have not done enough about it.

I do not believe it is appropriate to discuss the particulars of the events of this spring and summer because matters arising from those events may come before the court. I do think it is appropriate, however, to discuss how systemic racism has affected our courts and how the courts can respond. I do so in response to the next question.

If we are honest, the unrest in our communities in 2020 is nothing new. The trust of people of color in our justice system has been eroding for decades. It is a serious problem and something the courts — and I as a justice — must continue to take seriously.

MacDonald: The public perception of trust and confidence in the court was impacted, because the court’s reaction to the pandemic demonstrated that courts and jail are unnecessary in many cases.

The court response to the pandemic was to shut down, except for serious matters and to release nonviolent people. Limiting access to court unless there was an emergency empowered people to work things out among themselves, as there was no ability to look to the court adversarial process and a judge’s decision for resolution.

That made people realize that they may have unnecessarily relied on lawyers, courts and judges. And it empowered people to work to solve their own issues, because court was not an option. Perhaps there was increased confidence in each other, along with a renewed commitment and trust to resolve without court.

I had several Zoom hearings and trials. There seemed to be a closer, more personal connection to the judges. I and other attorneys and litigants could email, call and see judges up close, bringing humanity into the situation and cutting through some of the bureaucracy in our court system that obstructs connection.

I founded Family Innocence, a nonprofit that is dedicated to resolving conflicts and injustices peacefully through restorative circles and mediation. The pandemic prompted our organization to think to use special magistrates in settled cases, to avoid required attendance in court, because court was not an option.

 

2: Is there systemic racism in the Minnesota Court system? What specific steps do you advocate to improve the fairness of our courts?

Thissen: Courts are not immune from the legacy of racism that affects so many institutions in our country. At its best, our court system can and must be a model for how we achieve justice together — with respect, hearing each other out, decisions based on nothing else but our equal standing as human beings and fellow citizens. And Minnesotans should know that judges and other court employees work hard to deliver justice in Minnesota fairly, impartially and respectfully, according to the law. I am committed to do everything in my power, every day, to make sure that is true for every person who comes before our court.

But I also know that our justice system is imperfect. Too many people of color and indigenous peoples do not have the same access to justice as other Minnesotans. There are disparities in outcomes in our justice system that cannot be readily explained, but for the fact of the race of the litigant.

We can put in place institutional rules and processes that are more inclusive and transparent. We can make sure that our legal analysis does not overlook or ignore the reality of race in our society. We can make sure our courts remain committed to not simply procedural justice but true substantive justice.

For instance, providing clear implicit bias instruction to jurors and reforming or eliminating cash bail are steps the courts can (and are) taking today to eliminate adverse racial outcomes in our courts. We can advocate at the Legislature for reforming our laws on mandatory fees and fines. And as a judiciary, we need to stop tolerating racial bias to advance other legitimate goals.

I highly commend William Martin and Peter Thompson’s 2002 article in the Hamline Law Review called “Judicial Toleration of Racial Bias in the Minnesota Justice System.”

MacDonald: Attributing racism to an entire court system ends up blaming everyone, with no one in particular being accountable. It also may provide a cover for the few actual racists. I believe that we deal too much in vague, generalized conclusions, and need to take the time to discern particularized facts that lead to the truth.

Our current system is a punitive system— top down and compulsory, where those at the top, i.e., judges, police, service providers and attorneys, assume responsibility for deciding what will happen to those in conflict. This model of justice is complex and requires specialized training.

To improve fairness, I advocate a unitive system, equal and voluntary, where those in conflict meet in a safe place, hear each other out and decide what to do about their conflict. All members of the community, i.e., family, neighborhood, workplace, are empowered to address the conflict using various communication tools.

 

3: Judges and justices are notoriously tight-lipped when it comes to speaking about issues before the court. But what about judicial candidates? How free should they be to speak directly to issues that are pending or that might find their way to the court?

Thissen: It is essential, especially in this time of declining trust in all institutions, that the judiciary retain its reputation for independence, integrity and impartiality. Speaking about specific cases or issues that are pending or that may come before the court may undermine that reputation and the public trust.

On the other hand, greater transparency by the court about its operations and efforts to improve serves it and all Minnesotans. Notably, the Rules of Judicial Conduct currently allow candidates for judicial office to speak generally about judicial organization, administration and court management, including issues around improving access to justice. Access to justice has been a career-long passion of mine and I have spoken frequently during the campaign about my commitment and ideas for closing the justice gap in Minnesota.

It is also fair for a judge to discuss the general approach he or she will take on tough legal issues and the constitutional values a judge considers important. I have spoken about my belief that courts should act to preserve our democracy and the power of communities to solve their problems. I am committed to preserving Minnesotans’ individual rights and holding the powerful accountable (including the courts themselves) to the law and constitution.

MacDonald: The rules have been relaxed in terms of candidates speaking about issues that are pending or may come before the court for many years.

Republican Party v. White, 536 US 765 (2002) was a decision by the U.S. Supreme Court regarding First Amendment rights of candidates for judicial office. The court ruled that the announcement clause, which forbade candidates for judicial office from announcing their views on disputed legal and political issues, was unconstitutional. In the post-White era, those running for judicial office are legally able to do many things that were earlier forbidden under the judicial canons.

In past elections, the chair of the Minnesota State Bar Association has sent judicial candidates a proposed contract, a sort of “gag” order, recommending that they do not adhere to the White case, indicating a resistance to the U.S. Supreme Court jurisprudence by the bar.

 

4: Let’s talk about feedback: Anyone visiting a doctor or flying on a plane gets a survey asking, “How did we do?” For years, Hennepin County has surveyed lawyers on judicial performance. What are your thoughts about creating a feedback process for the individual judges on the Minnesota Supreme Court?

Thissen: I think it is a terrific idea. It is a great way for us to improve as judges and as a court. The challenge is that on our court, we speak as a court and not as individuals. Perhaps the feedback should be about individual judges and the court as a whole.

As I said before, transparency is essential to building and maintaining trust and legitimacy for the court. It is why I am active on social media and try to be as responsive as possible (within the constraints of the Code of Judicial Conduct) to inquiries about the court or my work.

MacDonald: I have been involved in these surveys. Feedback processes already exist in a general way. The appellate court is busy, because litigants are dissatisfied with lower court rulings.

There are ways to facilitate communication and feedback between and among the particular litigants and the judges. Judges can be held accountable by allowing the particular litigants and attorneys to be heard and be critical of the judges and their decisions, and implementing a restorative circle process.

 

5: Supreme Court justices act as liaisons to various committees and judicial districts. In that capacity, a justice can advocate for innovation and reform. But in contrast to court opinions, such advocacy requires getting people not on the Supreme Court to see and buy into your vision. If you are elected, where would focus your time on this aspect of the job?

Thissen: Being a liaison judge to districts in Greater Minnesota — and “riding along” with judges sitting in courtrooms in Greater Minnesota counties — has been a great chance for me to better understand the challenges our District Courts face and get an on-the-ground flavor for justice in different parts of Minnesota.

In my first few years on the court, I have focused on improving access to justice and I want to continue that focus. When Legal Aid (which does great work for many Minnesotans) every year has to turn away tens of thousands of poor Minnesotans with real legal need, we are not living up to our highest calling as a people to establish justice for everyone.

My most significant work in my first few years on the court on this issue was serving as co-chair of the Implementation Committee that developed the recently approved pilot project to allow qualified paraprofessionals under the supervision of a lawyer to provide legal help and appear in court alongside otherwise unrepresented clients in eviction, eviction expungement and certain family law matters. It is an innovative solution that we will test here in Minnesota to see if it can turn the dial on increasing access to justice.

We need to think more broadly about what justice is. As lawyers and judges, we often limit our conception of justice to this question: Did we reach a result in this particular case in an impartial and fair manner and in a way that is consistent with neutral legal principles and statutes?

And that question of procedural justice is critically important. Our court has final word on the rules that govern state court procedures (Rules of Evidence, Rules of Criminal and Civil Procedure). We need to make sure that the rules we adopt move us toward a system where reasonable people would say that the decision maker (judge or jury) has the right information before it to make a fair decision. They do not always do so today. Some of my opinions and dissents have focused on that critical question and I want to continue to engage in that discussion.

But we need to articulate a broader vision of justice beyond just procedural justice. When most people think about the term “justice,” they do not start talking about process. They focus on whether their — or their neighbors — basic needs are met; whether they have a real opportunity to succeed and prosper and thrive as human beings. Courts should see themselves as part of the network of institutions that support this broader concept of justice and partner with them to achieve it. We have glimmerings of this in concepts like mental health and addiction courts and veterans’ courts. But we could do so much more.

I am also interested in increasing opportunity for more people from diverse backgrounds to join and thrive in the legal profession. Justice [Anne] McKeig and I sponsor a residency with the court for four third-year Mitchell Hamline students who may not otherwise consider seeking a clerkship opportunity. It is my opinion that we need to think hard about the bar examination and whether (in its current form) it is an accurate measure of whether someone will be a good and competent lawyer.

MacDonald: Implementing restorative services in lieu of the court adversary process would be my focus. What I have seen in court leads me to believe that the Supreme Court has an obligation to involve itself in community and restorative circles, and other restorative practices.

I was a lawyer and mediator for 25 years, before I was introduced to restorative circles, which involves a peacemaking dialogue. Last year, through Family Innocence, I developed and taught a restorative circle mediation training, designed to restore relationships of all kinds. In the restorative circle, all participants can speak one on one until they are fully heard, not just the words, but the meaning. The Supreme Court’s Alternative Dispute Resolution judicial branch certified the course for 46 credits.

The Supreme Court does a lot more than issue rulings. It makes the rules and allocates the budget, which determines how all of our Minnesota courts operate. As an associate justice, I would urge the Minnesota Supreme Court to require more community and restorative practices at all levels of the Minnesota court system.

 

6: Why do you want this job?

Thissen: I am running because I care deeply about Minnesota and Minnesotans. I have a long record of serving this state and its people as a judge, a lawyer, a legislator. I grew up in Bloomington, the son of two public school educators who instilled in me those basic Minnesota values that I bring to my work on the court each day: work hard, listen to others and respect their point of view; treat others with compassion; be curious about the world and willing to dig in deep to get to the right answers; serve your community.

I am running because the Minnesota Supreme Court deals with matters that impact Minnesotans’ lives in the most fundamental ways.

It is a serious job and one I take very seriously. I listen compassionately to every person’s story with an open mind, treat them fairly and with respect, strive to protect Minnesotan’s constitutional rights and the rule of law and to hold the powerful accountable. I believe that I have done that, and I want to continue serving Minnesota in that way.

I am running because I bring broad and deep experience to the job. Before my appointment to the court, I worked as a lawyer for 25 years: arguing cases before the Minnesota appellate courts as a public defender; representing individuals and Minnesota businesses large and small in complex civil litigation; guiding health care and long-term care providers through complicated regulatory matters and business deals. And I always took time to represent, for free, victims of domestic abuse, families with disabled children and people fleeing torture seeking to make a new life in our great country. That breadth of legal experience serves me well as I decide a wide range of tough legal issues.

I am running because the preamble to our U.S. Constitution says our purpose as a nation, as a people, is to establish justice. That means for everyone. I have cared passionately my whole career about the need to make sure everyone gets a fair shake. We do not yet live up to that ideal in Minnesota. I am running to stay on the Supreme Court because I have made real and meaningful concrete progress toward that promise and I want to continue to move us closer to fulfilling that promise.

And finally, I am running because I am proud to be a member of a court that is non-ideological — that makes decisions based on the rule of law. Minnesotans are often surprised to hear that our court — with appointees from both Republican and DFL governors — decides cases unanimously (all seven us agreeing on the outcome) in about 75% of our cases. And that culture serves Minnesota well.

The Minnesota Supreme Court is not a place for a person with a specific partisan agenda and I want to make sure it stays that way.

MacDonald: My experiences lead me to believe that eradicating judicial corruption should be the highest priority for an elected official.

For 33 years, I have been an attorney representing thousands of people with legal challenges before hundreds of judges, at every level, including District Court, appellate court, Supreme Court and petitions to the U.S. Supreme Court.

For 22 of those years, I have been a small claims court judge and adjunct family court referee. I have witnessed an unprecedented display of courts abusing their discretion and authority and harming people and families with their court orders. I had a calling to eliminate court for families, and founded Family Innocence, dedicated to keeping families out of the court adversarial process through restorative circles and mediation.

If elected to the Supreme Court, I pledge to ensure judicial integrity and restore rights to access to the courts, due process and a fair trial, as required by the Constitution, the law and rule of law. I can do this by holding judges accountable to the law and the people they serve.

Courts need to be places where people can speak and be heard without fear. I want to bring humanity into the court system, by implementing restorative circles and other practices, to restore justice for all.

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About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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