Commentary: Judges have a constitutional and an ethical responsibility

The most difficult decisions I make do not involve sending a person to prison. By the time I send someone to prison, the trip is earned.

The most difficult decisions I make involve children. Which parent should they live with after the divorce? Should I terminate their parents’ rights for neglecting them and hope a good family adopts them?

There are no reporters in the courtroom monitoring the trials in these cases. There are no TV trucks in the parking lot, antennas raised, awaiting my decision.

I do the best I can sorting through the disputed facts, applying the sometimes unclear or unsettled law and hope that I get it right. I don’t always get it right and I take a great deal of comfort in knowing that there are appellate courts that can review my decisions and correct them if I get it wrong.

I do not seek out these cases and would prefer never to hear another case involving divorcing parents fighting over the custody of their children or another case involving abused and neglected children.

I will hear these cases again, however, because that is my job. It is my responsibility to make decisions when other people are unable or unwilling to decide the matter themselves.

This is the situation whether it involves parents who can’t agree what is best for their children or whether it is the Legislature and governor that can’t agree what is best for the people of Minnesota. I don’t consider myself an activist because I make these decisions.

Of the 1.6 million cases filed each year in Minnesota Courts, few, if any, touch upon controversial, emotionally charged social and political issues. Cases involving abortion, immigration, voter identification, or gay marriage, to name a few, are rare.

Whenever such a case is filed, it is frequently accompanied by intense media coverage and hyperbolic political commentary. When the case is decided, the presiding judge is often labeled an activist by those least happy with the decision. To paraphrase Shakespeare: Activism should be made of sterner stuff.

The truth is that judges have no control over the cases brought to them for decision and cannot pre-determine which disputes will arise within the jurisdiction of their court. Once the matter is brought to court, however, the judge has a constitutional and ethical responsibility to decide the controversy.

The judge must decide the issue based upon the facts involved and the applicable law and must make the decision within 90 days. The process and procedure that must be followed restrict the ability of any judge to pursue, promote or advance a particular political or social agenda.

The facts in any case are established long before a judge is involved, and the Legislature, appellate courts and the Minnesota and United States constitutions dictate the law judges must apply. Ultimate issues of guilt, liability and damages are frequently decided by jurors not judges. Any decision made by a trial court judge is subject to review and modification by appellate courts so any activist tendencies exhibited by a trial court judge would have to be shared by a majority of appellate court judges who hear it before the activism would be effective.

While a trial judge cannot choose which cases the judge wants to hear, any party can remove a state trial court judge if they do not want that specific judge to hear their case.

Judges face election every six years, are subject to recall petitions and may be removed from office for violations of their ethical responsibilities.

This is not an environment that fosters activism. One commentator once remarked that the “position of a judge has been likened to that of an oyster anchored in one place, unable to go out after things, restricted to working on and digesting that which the fortuitous eddies and currents of litigation may bring his way.”

Judges hear thousands of matters each year. The sheer volume of cases and the deadlines to decide each case consume most judges’ available time and energy. The attention, distractions and additional work that accompany high profile cases are seldom welcome.

Chief Judge Kathleen Gearin in Ramsey County did not orchestrate the government shutdown so she could spend her nights and weekends scrutinizing arcane statutes to determine whether certain government functions should continue operating until the governor and Legislature agreed upon a budget.

No judge wants to learn that the next case on the docket is a suit by the “Brokeback Mountain” cowboys to obtain a marriage license.

Supreme Court Justice Harry Blackmun was criticized and received death threats the rest of his life after writing the decision in the abortion case of Roe v. Wade.

Judges do not consciously seek the type of attention these cases generate. Once cases are brought to court, however, whether they involve children, contracts, criminal behavior or controversial constitutional, political or social issues, judges must decide them.

The comparison of judges to oysters is not very flattering, but it is fairly accurate when the factors that guide and limit the role and discretion of judges in making decisions are considered. It is something to keep in mind the next time someone complains about activist judges.

Edward Lynch is chief judge of the First Judicial District.

Tags: commentaries, opinion