STATE OF MINNESOTA IN THE SUPREME COURT In Re Petition for Disciplinary Action against MICHELLE LOWNEY A Minnesota Attorney Registration No. 182370 BRIEF AND ADDENDUM Paul Engh, Lie. 134685 Susan Humiston, Lie. 254289 Suite 420 Director, Of?ce of Lawyers 200 South Sixth Street Professional Responsibility Minneapolis, MN 55402 345 St. Peter Street 612.252.1100 St. Paul, MN 55102 ATTORNEY FOR RESPONDENT ATTORNEY FOR PETITIONER TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii PROCEDURAL HISTORY I 1 STATEMENT OF ISSUES 2 STATEMENT OF THE CASE 3 STATEMENT OF THE FACTS 4 ARGUMENTS 17 I. BY PERMITTING HER ARREST AND HANDCUFFING, THE DISTRICT COURT PREVENTED MS. MACDONALD FROM ZEALOUS REPRESENTATION OF HER THE FINDING THAT SHE ABANDONED THE LITIGATION IS THUS UNSUPPORTED BY THE EVIDENCE MS. MACDONALD HAS BEEN ERRONEOUSLY SANCTIONED FOR EXERCISING HER FIRST AMENDMENT RIGHT TO CRITICIZE THE JUDICIARY FOR HER IMPROPER HANDCUFFIN AND INCARCERATION DURING A TRIAL MS. MACDONALD WAS PERMITTED TO BELIEVE HER REPRESENTATIONS IN GOOD FAITH, AND LITIGATE IN ACCORDANCE WITH WHAT SHE HAD BEEN TOLD WITHOUT ETHICAL VIOLATION IV. WHERE THE MITIGATIN FACTS FAR OUTWEIGI-I THE AGGRAVATING FACTORS, THE SUGGESTED DISCIPLINE WAS NOT WARRANTED CONCLUSION . 5.1 CERTIFICATE OF COMPLIANCE 52 ADDENDUM 53 TABLE OF AUTHORITIES CASES C.O. V. Doe, 757 343 (Minn. 2008) 18 Carrillo v. Fabian, 701 763 (Minn. 2005) 18 Citizens United v. Federal Election Commission, 558 US. 310 (2009) 35 City ofDquth Cerveny, 116 779 (Minn. 1944) 22 File NO. 17139, 720 807 (Minn. 2006) 41 Foley v. WCCO Television. 1110., 449 497 (Minn. 1990) 30 Gentile V. State Bar ofNevada, 501 US. 1030 (1991) 31 Illinois V. Allen, 397 US. 337 (1970) 26 Janklow V. Newsweek 1110., 788 F.2d 1300 (8th Cir cert. denied, 479U s. 883(1986) 30 In re Albrecht, 779 530 (Minn. 2010) 18 Inl?e Blilie, 494 877 (Minn. 1993)45 in re Erickson, 653 184 (Minn. 2002) 18 In re Evans, 461 266 (Minn. 1990) 46 n. In re Grif?th, 838 792 (Minn. 2013) 46 In re Grigsby, 764 54 (Minn.2009) 19 In re Lange, C4-96-S96 (Minn. Board ofJudicial Standards 1996) .: 27,29 In re Michael, 836 N.W.2ad 753 (Minn. 2013) 19 In re Miera, 426 850 (Minn. 1988) 27, 28 In re Moeller,.582 554 (Minn. 1998) 1 8 In re Plummer, 725 96 (Minn. 2006) 46 In re Selmer, 866 893 (Minn. 2015) 18, 17, 46 In re Torgerson, 870 602 (Minn. 2015) 31, 46 In re Wentzell, 656 402 (Minn. 2003) i..19 In re Wylde, 454 423 (Minn. 1990) 3, 47 In the Matter of Conrad Hafer, No. 72453 (Nev. Supreme Court 2017) 2, 23 Maness V. Myers, 419U.S. 449 (1975) 2,41 Mangold Midwest Co. V-. Village of Rioh?eld, 143 813 (Minn. 1966) 21 Meagher V. Kavli, 97 370 (Minn. 1959).. 41 NewYork Times V. Sullivan, 376 US. 254 (1964) 31, 32 Nix V. Whiteside, 475 US. 157 (1986) 42 Republican Party V. White, 536 US. 765 (2002) 37 Sherek V. Independent School Distr. No. 699. Gilbert, 449 434 (Minn. 1990) 45 Skilling v. United States, 561 US. 358 (2010) 21 Snyder V. Phelps, 562 US. 443 (2011) 3, 34, 35 Standing Committee on Discipline V. Yagman, 55 F.3d 1430 (9th Cir. 1995)..2, 32, 36 State V. Kuhlman, 719 577 (Minn. 2007) 21 State V. Leathers, 799 606 (Minn. 2011) 21 State v. Miller, 573 661 (Minn. 1998) 19 State V. Olson, 325 l3 (Minn. 1982) 21 State v. Rick, 835 478 (Minn. 2013) 21 State v. Staats, 658 207 (Minn. 2003) 19 State v. Wiemasz, 584 1 (Minn. 1989) 20 State Board of Law Examiners v. Hart, 1 16 212 (Minn. 1908) 26 RULES Rule 4.02, Minnesota Rules of District Court 10, 20, 21, 22 Rule 3.1 (MRPC) 39 Rule 3.4 (MRPC) 22 Rule 4.4 (MRPC) 22 Rule 8.2 (MRPC) 23 iv Rule 24 Rule 1.2 Mimesota Code of Judicial Conduct 24? Rule 2 and subsections (MCI C) 24 PERIODICALS Judge Jed Rakoff, ?Why You Won?t Get Your day in Court,? New York Review of books, November 24, 2016 50 PROCEDURAL HISTORY January 14, 2014: Judge Knutson?s complaint to the Lawyer?s Board August 12, 2014: Board of Professional Responsibility Petition ?led August 24, 2016: Ms. MacDonald?s Answer ?led November 15-16, 2016: Contested hearing, before the Honorable Heather L. Sweetland. January 3, 2017: Referee?s Findings of Fact, Conclusions of Law, Recommendation for Discipline and Memorandum ?led January 12, 2017: Transcript ordered February 6, 2017: Transcript ?led March 3, 2017: Motion for Extension to File Brief ?led; motion granted STATEMENT OF ISSUES I. BY PERMITTING HER ARREST AND HANDCUFF IN G, DID THE DISTRICT COURT PREVENT MS. NIACDONALD FROM ZEALOUSLY REPRESENTING-HER AND, IS THE FINDING THAT SHE ABANDONED THE LITIGATION SUPPORTED BY CLEAR AND CONVINCING Apposite authority: In the matter of Conrad Hafer, No. 72453 (Nev. Supreme Court 2017); Findings at paras. 65-82. II. WAS MS. MACDONALD IMPROPERLY SANCTIONED FOR EXERCISING HER FIRST AMENDMENT RIGHT TO CRITICIZE THE JUDICIARY FOR HER IMPROPER ARREST, HANDCUFFING AND INCARCERATION DURING A Apposite authority: Snyder V. Phelps, 562 US. 443 (2011); Standing Committee on Discipline. V. Yagman, 55 F.3d 1430 (9lh Cir. 1995); Findings at paras. 127-132 II. COULD MS. MACDONALD BELIEVE HER REPRESENTATIONS IN GOOD FAITH, AND LITIGATE IN ACCORDANCE WITH WHAT SHE HAD BEEN TOLD WITHOUT ETHICAL Apposite authority: Manness v. Myers, 419 US. 449 (1975); Findings at paras. 101-107. 1v. WHERE THE MITIGATING FACTS FAR OUTWEICH AGGRAVATING FACTORS, IS THE SUGGESTED DISCIPLINE Apposite authority: In re Wylde, 454 423 (Minn. 1990); Findings at paras. 133?139. - STATEMENT OF THE CASE The Respondent, Michelle Lowney MacDonald (Ms. MacDonald), appeals from the Findings of Fact, Conclusions of Law, Recommendation for Discipline and Memorandum of the Honorable Heather L. Sweetland. "Rule 14 Minnesota Rules of Professional Conduct (MRPC). Ms. MacDonald, a lawyer for twenty-nine years, raised First and Fourth Amendment and good faith defenses, each turned aside, each new the subject of this Court?s independent review. Moreover, Ms. MacDonald contests the Referee?s critical ?ndings as unsupported by clear and convincing evidence. I Whether a lawyer can be arrested during a trial, and whether presiding Judge, David Knutson, erred in allowing it to happen, is what this appeal is about. Ms. MacDonald?s pat down, her handcuf?ng, her placement in a wheelchair and the Court?s insistence that she try a divorce case with those unnecessary restrictions was inappropriate and unfair. Ms. MacDonald had a First Amendment right to complain about her treatment to the Beard of Judicial Standards and in appellate pleadings, a right the Referee?s ?ndings and conclusions eviscerated. That ruling,- if allowed to stand, does no good for either the bar or the bench. Ms. MacDonald also takes issue with the Referee?s determination that her zealous representation for non-complaining clients was not done in good faith. We take issue with the proposed discipline of sixty-days, coupled with a needless mental health examination as a condition. STATEMENT OF FACTS Ms. MacDonald graduated from Boston College in 1983; and from Suffolk University Law School, in 1986. She was admitted to the Minnesota bar on September 11, 1987. Since then she has been a full-time practicing attorney, with a family law emphasis. T. 163; Exh 100. She?s never been sued for malpractice. T. 373. I Her career includes public service as a conciliation/small claims court Judge in Hennepin County, for roughly twenty-years. T. 381. She was also an adjunct RefereeXArbitrator for the Hennepin County Family Law Court, from 1992 to 2011. T. 382. For her efforts, Ms. MacDonald received a Years of Service Recognition Award from the Hennepin County Judiciary. T. 3 81. Ms. MacDonald has also engaged in pm bong work of signi?cance. She formed a See. 501(c)(3) non-pro?t, Family Innocence, designed to support those engaged in the process of dissolution and its permutations, and has served as its president from 2011 to present. T. 375. She has worked extensively on restorative justice issues, is a founding member of the Cooperative Private Divorce Project, and has assisted in the drafting of legislation that would create an alternative to the adversarial system. T. 381; Exh. 129. She founded, as well, the Child Custody/Parenting Time Dialogue Group, in 2013-. For her devotion to providing legal services to those who can?t afford court access, Ms. MacDonald received the Lawyers Pro Bono Award in 2013, 2014 and 2015. T. 379. This case and appeal, triggered by a single complaint from Judge Knutson, concerns two dissolution trials, both hotly contested, with sanctions imposed against Ms. MacDonald?s clients who have not complained. The Grazzini-Rucki litigation, Ms. MacDonald?s arrest, her handcuffing, the wheelchair, the thirty?hours in jail Ms. MacDonald met Ms. Sandra Grazzini-Rucki through her Family Innocence non-pro?t. T. 164. Ms. Grazzini?Rucki had been previously represented by several lav'vyers, who had charged her a combined $190,000.00, pretrial. T. 403. After consulting with Ms. Grazzini-Rucki, and in light of her representations, Ms. MacDonald came to the good faith belief and opinion that a previous Dakota County District Court Order, signed by Judge Knutson, denied her new client due process. The Order had removed her already divorced client from her own home and prohibited contact with her children. An Order, unbeknownst to Ms. MacDonald, drafted by Ms. Grazzini?Rucki?s previous attorney and without her client?s input. An Order the result of a telephonic hearing which Ms. Grazzini-Rucki did not attend, nor was aware of. T. 33, 52. Upon the Court?s Order granting custody, two of the GrazzinisRucki children ran away; they were found two years later. T. 217. Ms. MacDonald read the Dakota County District Court ?le and agreed to represent Ms. Grazzini-Rucki on a limited basis, namely to file motion and present arguments that the Minnesota divorce statute was unconstitutional as applied and written. T. 400. MacDonald was ??abbergasted? by the notjustOrder?s provision requiring ndt-icontact with the children, but the restrictions imposed that barred Ms. Grazzini-Rucki from their school. For these reasons, among others, she ?led a motion to vacate. T. 166, 169, 189. Ms. MacDonald?s efforts were denied by Order on April 19, 2013. Exh. 64. Thereafter, Ms. MacDonald agreed to represent Ms. Grazzini-Rucki pm bong. T. 399. couldn?t turn her away,? Ms. MacDonald said. (T. 399). couldn?t have her go it alone.? Though described as litigious,.T. 147, Grazzini?Rucki v. Grazzini, WL 1286725 (Minn. App. 2000), Ms. Grazzini-Rucki did not testify in this case. Ms. MacDonald was her sixth lawyer. T. 147. A common issue to be resolved at a divorce trial is who pays for the lawyers. Ms. Grazzini?Ruck-?P and Ms. MacDonald had planned to make such a claim. Ms. Grazzini-Rucki did not possess the billing records for her past attorneys, and could not personally testify with accuracy as to their quantum. T. 404. Ms. Lisa Elliott, the attorney for Ms. Grazzini-Rucki?s husband, refused to settle the case, and planned to contest the question of attorney?s fees. Her testimony on cross: ?Would you have stipulated to the foundation of the admissibility of those bills? A. Probably not.? T. 159. For that reason, Ms. MacDonald testified that ?it was perfectly legitimate to do a subpoena to have these attorneys come and talk about her billings.? T. 222. She served her client?s prior attorneys. One of the lawyers, Linda Olup, sought and received $4,000.00 for drafting and ?ling a motion to quash, T. 226, in addition to the $100,000.00 she had been already paid by T. 403. For the hearing to quash, Ms. MacDonald received short notice, and was few minutes late. ?It?s very common,? observed Ms. MacDonald without rebuttal, for the Dakota County judiciary, given its case load, to commence hearings in an untimely fashion. T. 416. The Referee?s Finding of lateness, para. 33, omits mention that, according to Ms. MacDonald, ?Ms. Elliott was late several times. Her client was late several times. There was a lot of grace provided-with - with that.? T. 417. 1 Ms. Elliott?s arbitrary refusal to stipulate to billing records foundation testimony was unavailable to the District Court when it issued an Order criticizing the subpoenas. T. 225, 404; Exh. 8. Ms. MacDonald appealed the sanction order to the Minnesota Court of Appeals. Exh. 47. This Court denied further review. Exh. 10. Before the Grazzini-Rucki custody matter proceeded to trial, Ms. MacDonald served a ?Color of Law? letter on Judge Knutson, claiming his earlier Order removing Ms. Grazzini~Rucki from the home and her children was unconstitutional; the notice indicated a lawsuit was imminent. T. 410. Ms. MacDonald believed the Judge was not immune from suit because he personally had violated the civil rights of Ms. Grazzini-Rucki. T. 48, 410. The ?color of law? notice foreshadowed the civil rights complaint against Judge Knutson, lodged in federal court contemporaneously with the start of the divorce trial. Ms. Grazzini~Rucki verified each factual claim. T. 410. Ms. MacDonald believed her client?s claims to be true, and acted in good faith upon those assurances. T. 411. At the start of both dissolution trial dates, Ms. MacDonald moved for Judge Knutson?s recusal. She felt duty?bound to do so. T. 413. Her motions were premised on the fact that Judge Knutson, as a party, would be a witness in the companion federal litigation. T. 412. Judge Knutson denied the motions, terming the civil suit ?ridiculous,? a tactic of delay. He ordered the Grazzini-Rucki trial to commence. T. 52, 58. On the second day, Ms. MacDonald took photographs of the interior courtroom while not in session; Judge Knutson was in chambers at the time. T. 23 7, 241. One of the photographs was of a Dakota County Deputy Sheriff, who posed without objection. T. 84, 23 8, 419-20. When told that Ms. MacDonald had used her camera in the courtroom, Judge Knutson ordered the Deputies to make a warrantless seizure of it, and her phone. T. 58, 77, 421. That seizure was later held, by Judge Leslie Metzen, to be in violation of Ms. MacDonald?s Fourth Amendment protections. Exh. 27. Two rules addressed Ms. MacDonald?s conduct. The ?rst, Rule 4.01, Rules of the District Court, permits photography provided the courtroom is not in session. That rule is available to any attorney who wishes to read it, and Ms. MacDonald had done so. T. 419. Judge Knutson, on cross, conceded no violation thereof. T. 73?76. A second rule, of the First Judicial District and unpublished, bars photography whether or not the court is in session. ?Nobody gave me that,? Ms. MacDonald testi?ed. had not seen it.? T. 419. We requested the Referee ?nd the con?ict and ambiguity between Rule 4.01?s permissive use of a camera, and the local Order?s carte blanche prohibition be resolved in favor of Ms. MacDonald. The Referee picked the local rule instead, in error. Findings paras. 56?67. During the ?rst morning break, and not content with the seizure of her camera and cell phone, two Dakota County Deputy Sheriffs escorted Ms. MacDonald from the courtroom. As Ms. MacDonald described it, ?They just took me away.? T. 252. Ms. MacDonald?s testi?ed extensively about what she should not have experienced. T. 267?308. Once in the holding cell area, behind the courtroom, the deputies asked for her name. ?You know my name,? Ms. MacDonald replied. T. 252. ?They knew who I was.? T. 253. A deputy responded, ?Who do you think you are, Nelson Mandela?? T. 253. The deputies sought to give Ms. MacDonald a ticket, for taking a 10 photograph, a photograph permitted .by Rule 4.01. They had all the information needed to give her a simple tab charge, right there at the counsel table. T. 277. Judge Knutson, on cross: Would you agree that there is no need whatsoever to find out who she is because she was already well known in this case? A. I agree.? T. 8-1. The Court could have easily prevented the arrest. ?1 have control of over happens in the courtroom,? he emphasized. T. 87. Unable to ?identify? Ms. MacDonald, the deputies patted her down. Why the burly Deputies had to do so, Judge Knutson said he could not ?imagine,? his observation missing from Findings. T. 89. Ms. MacDonald was then taken to a holding cell, her jewelry removed, placed in handcuffs attached to a belt around her waise sans a showing of dangerousness. T. 90. Her shoes were removed, she was made to sit in a wheelchair and brought back to try the case as if nothing had happened. T. 27.8, 284, 294. ?My libertieswere completely gone,? she said, and they were. T. 289. The Referee found no arrest, no restriction, occurred until Ms. MacDonald declined to give her name to- the Deputies who already knew. it. Findings para. 68, 72. The testimony differs. Attorney Lisa Elliott described the incident as one involving no choice whatsoever. didn?t appear that she could have said no.? T. 148. 11 Judge Knatson concurred with Ms. Elliott. There was absolutely no need for them to take her; fair enough? A. I would agree to that.? T. 109. Ms. MacDonald was, for want of a better term, unfree, her skills as a lawyer blocked. wasn?t available to'represent my client the Second day of trial. I was under arrest,? she said, and she was. T. 302. The Deputies told Judge Knutson she was handcuffed. T. 93. In a subsequent af?davit ?led with the Board, Judge Knutson claimed he was ?without personal knowledge? of that fact. T. 94. Upon her lawyer?s arrest, Ms. Grazzini-Rucki packed up the ?les and left. T. 134. She?d been told by the Deputies the trial was over, for her attorney was under arrest. T. 294. Judge Knutson ?led an ethics complaint against Ms. MacDonald, the basis being that, given her arrested state, her handcuf?ng, and her placement in a wheelchair bound, she abandoned Ms. Grazzini-Rucki?s case. T. 98. But at the hearing, he conceded Ms. MacDonald?s Viewpoint, namely that her incarcerated status prevented zealous advocacy. On cross: Our claim is that it was impossible to proceed isn?t that right. We have reasonable differences of opinion here? A. That?s correct.? T. 98. Ms. MacDonald: wasn?t available to represent my client the second day 12 of trial. I was under arrest.? T. 302.. She felt she couldn?t continue. T. 423. Explaining her dif?culty in responding to Court, when asked how she would like to proceed, ?So I was in a state of shock, and I?m sorry I didn?t say anything.? T. 425. Ms. MacDonald?s restrictions, her resulting emotional and physical diminution, changed the trial dynamic. Judge Knutson agreed that Ms. Elliott thereby secured a tactical advantage over Ms. MacDonald, and he permitted it to happen. T. 98. At his insistence, the trial continued for the duration of the afternoon, with Ms. MacDonald still cuffed, wheelchair bound, without a pen, a piece of paper, a client. At the end of the day, she was taken back to jail and held overnight. She would spend thirty needless hours there. T. 426. Judge Knutson, again on cross: They kept her at the conclusion of the court. I did not know that. I didn?t know she was held overnight. I didn?t know she was jailed. . T. 88. ?Well, I didn?t know they kept her or why they kept her.? T. 88. Judge Knutson had the rule-based authority to release her I immediately. generally Rule 6.1, subd. 1 citation must be issued for petty misdemeanors . . . If an arrest has been made, a citation must be issued in lieu of continued detention?). 13 Given this rule and the Court?s intentionally unused discretion, Ms. MacDonald had a reasonable basis to make this claim: believe he?s responsible for what happened. He?s the. judge. He?s supposed to be responsible for everybody?s: Welfare in the courtroom.? T, 337. The G1azz1n1?Ruck1 v.G1azzn1nlcustody case (the divorce had already been granted in May 2012), was taken under advisement, with the Court?s decision was entered on November 25, 2013. Thereafter Ms. Grazzini-Rucki directed Ms. MacDonald to appeal, and she did so. File A14-139. The Minnesota Court of Appeals dismissed the Grazzini~Rucki appeal for lack of service to a guardian at litem. Ms. MacDonald served the guardian via e-?ling. T. 433. She thought she had effective service, T. 437, but the Court of Appeals ruled that she did not. Ms. MacDonald petitioned for review of the dismissal, without success. T. 438; Exh. 125. From Ms. MacDonald?s perspective, the Guardian was dismissed ?om the case before the appeal was perfected, and was sent a' notice only as a courtesy. T. 434. The parties had been ordered into mediation while the appeal was pending. T. 435-37; Exh. 128. The Guardian refused to accept the e?service. T. 437. The certiorari petition was ?led with the United States Supreme Court. Exh. 123. Ms. Grazzini-Rucki?s federal civil rights lawsuit against Judge Knutson, ?led on September 11, 2013, was dismissed primarily on judicial immunity 14 grounds. Exh. 45. Ms. MacDonald appealed the judgment to the Eighth Circuit Court of Appeals without success, 597 Fed. Appx. 202 (8'11 Cir. 2015); Exh. 116, and ?led a Petition for Writ of Certiorari with the United States Supreme Court, which was denied. 136 361 (2015); Exh. 117. After her arrest, Ms. MacDonald lodged her first ever formal complaint against a sitting judge. T. 322, 330. ?In my View, I was being retaliated against by Judge Knutson at that point for suing him.? T. 330. The Board of Judicial Standards turned her complaint away without an investigation. T. 321; Exh. 36. The Referee found fault in the letters Ms. MacDonald wrote to Ms. Grazzini-Rucki?s past lawyers, her letters to the Board of Judicial Standards, and a claim made in the Court of Appeals, all challenging Judge acquiescence in her improper arrest. Findings para. 102; Conclusion para. 6. In her statement I of the case to the Minnesota Court of Appeals, for example, Ms. MacDonald indicated she ?was placed in handcuffs, a wheelchair and a jail cell, and later brought back to the courtroom, and the Judge returned to the bench.? That she ?was made to continue to participate? while in handcuffed and in a wheel chair. In her letters to the Board, Ms. MacDonald made these same claims, of being ?in a wheelchair andin handcuffs,? without ?a pen, paper? and ?eye- glasses,? ?hair piece? and ?shoes.? The letters to Ms. Grazzini?Rucki?s past 15 lawyers recounted her arrest, and the fact that she was made ?to complete the trial . . . without my ?les, my client, and with the Grazzini-Rucki children missing since April, 2013.? Exh. 114. These assertions are con?rmed by the Video evidence. Exh. 15. D?Costa v. D?Costa Ms. MacDonald was Joseph D?Costa?s third lawyer. T. 347. His wife was represented, said Ms. MacDonald, by an ?aggressive attorney who would not settle for anything but her client getting evelything, including no contact with the kids.? T. 350. The trial, set for two days, lasted nine. T. 359. But the days were not solid, full. T. 360. The Hennepin County District Court Referee?s ?ndings criticized Ms. MacDonald for doing ?very little to direct or focus the husband?s testimony.? T. 363. Mr. D?Costa?s exhibits were ?a mess.? T. 357. Ms. MacDonald described her client as disorganized, recalling how he could not get the exhibits to her in a timely fashion. T. 385. He was aggressive, dif?cult to control, angry at the court system, often late. T. 386, 396. ?It was dif?cult sledding for sure,? she summarized, the trial contentious, with sporadic interruptions. T. 386; Exh. 56 at pp. 616-620. The District Court ordered Mr. D?Costa, not Ms. MacDonald, to pay 16' $20,000.00 in conduct-based attorney?s fees. T. 366; Exh. 58. Ms. MacDonald, at his request, perfected an appeal, and argued the constitutionality of the divorce statute, and the attorney?s fees award. T. 370. Mr. DiCosta approved of the brief. T. 392;--Exh. 118. The Court of Appeals found some claims procedurally barred, addressed the merits of the constitutionality argument, and awarded another $16,000.00 in fees against Mr. D?Costa. T. 371. D?Costa v. D?Costa, WL363474 (Minn. Ct. Pp. April 1, 2016); Exh. 60. He requested that Ms. MacDonald petition for review, which was denied. Exh. 119. I I. BY PERMITTING HER ARREST AND INSISTING SHE PROCEED WHILE HAND CUFFED, THE DISTRICT COURT PREVENTED MS. . MACDONALD FROM ZEALOUSLY REPRESENTING HER THE FINDING THAT SHE ABANDONED THE LITIGATION IS UN SUPPORTED BY CLEAR AND CONVINCING EVIDENCE Trying a lawsuit is hard enough without being patted down, cuffed, and held over night. Ms. MacDonald is not to be blamed. Standard of Review The Director has the ?burden of proving by clear and convincing evidence that the respondent violation the Rules of Professional Conduct.? In re Grigsby, 764 54, 60 (Minn. 2009). Where, as here, a transcript has been ordered, ?the referee?s ?ndings of fact and conclusions of law are not conclusive.? In re 17 m, 866 893, 898 (Minn. 2015). Nonetheless, the ?ndings are given ?great deference,? and will be upheld unless ?clearly erroneous.? Id. (quoting In re Wentzell, 656 402, 405 (Minn. 2003)). If there is evidence to support the particular ?nding, no error is to be found. In'Re Albrecht, 779 "530, 540 (Minn. 2010). Ms. MacDonald meets the standard for reversal if this Court is ?left with the de?nite and firm conviction that a mistake has been made.? m. The clear and convincing evidence standard is used because Ms. MacDonald?s ?interest at stake? is more ?substantial than those present in a typical civil case.?? CO. v. Doe, 757 343, 353 (Minn. 2008)(quoting Carrillo v. Fabian, 701 763, 774 (Minn. 2005)). The clear and convincing standard, well beyond the ?preponderance of evidence,? must re?ect a higher ?degree of con?dence? in the ?correctness? of the decision below, Carrillo, 701 at 774, the truth of the facts asserted against Ms. MacDonald ?highly probable? that she violated the rules of professional conduct violation. In re Erickson, 653 184, 189 (Minn. 2002)(quoting In re Moeller, 582 554, 557 (Minn. 1998)). The interpretation of law, Rule 4.01, the predicate of Ms. MacDonald?s arrest and continued detention, is reviewed m, its application to the facts for clear error. In re Selmer, 866 at 898; In re Michael, 836 753, 761 18 (Minn. 2013). Our First Amendment constitutional claims, set out in issue 11 are evaluated as well. State v. Wenthe, 839 83, 89 (Minn. 2013). Merits - An arrest occurs when reasonable person in the suspects?s situation [would] have understood that [s]he was in custody.? State v. Staats, 658 207, 211 (Minn. 2003)(quoting State v. Miller, 573 661, 670 (Minn.1998)). While factor alone is detenninative,? this Court emphasizes whether there was a restriction of the individual?s freedom, along with the presence of multiple of?cers. Staats, 658 at 211 (citing State v. Wiemasz, 584 1, 3?4 (Minn. 1989)). Ms. MacDonald?s viewpoint that she was arrested -- is both reasonable and consistent with this Court?s black letter law. Her ?eedom was restricted at the moment the deputies lead her away. Exh. 15. The Referee?s ?ndings suggest Ms. MacDonald was given a choice in the matter, as if she were somehow ?asked? to accompany the deputies. Findings para. 61. This is mistaken application of the facts, and the law de?ning an arrest. Casting aside the video, Exh. 15, which shows the unmistakable, and casting aside the possible biases Judge Knutson (who ?led the instant complaint) and Ms. MacDonald (who fought it), the only neutral witness was Lisa Elliott, Mr. 19 Rucki?s lawyer, who testi?ed, ?it didn?t appear that [Ms. MacDonald] could have said no.? T. 148. The Referee omitted that key sentence. Ms. MacDonald was needlessly arrested before the deputies ever ?asked? what her name was. The Referee suggests Ms. MacDonald was only in custody for refusing to give her name. Para. 69. Judge Knutson?s testimony undercuts that ?nding. His cross: Would you agree that there is no need whatsoever to ?nd out who she is because she was already well known in this case? A. I agree.? T. 81 . We question the arrest?s rule-based predicate. Rule 4.01, Minnesota Rules of General Practice, provides that no ?pictures . . . shall be taken in any courtroom . . . during a trial or hearing of any case . . . See Finding 56. Aware of the rule, Ms. MacDonald testi?ed that she followed its clear mandate. T. 419. She did not photograph while the court was in session. T. 419. The Deputy she took a picture of waived any objection to the camera click. The Referee preferred the First Judicial District rule posted nowhere in the courthouse for anyone to see, unlike Rule 4.01 which appears in every ThomsonfReuters handbook. The latter rule bars ?pictures . . . in any courtroom. . Findings para. 57; Exh. 50. Given that the two rules prohibiting the taking of photographs are in 20 con?ict, and given that the latter was used as a basis for a criminal arrest and prosecution, the more favorable reading for Ms. MacDonald must be embraced. Skilling V. United States, 561 US. 358, 410 (2010)(exp1aining the rule of lenity); State v. Olson, 325 NW. 2d 13, 19(Minn. The ?narrower? of the two interpretations be applied in favor of Ms. MacDonald. State v. Rick, 835 478, 483 (Minn. 2013); State v. Leathers, 799 606, 610 (Minn. 2011). The narrower reading of what is permitted Ls-aiig photographs in the courtroom appears in Rule 4.01. Ms. MacDonald believed, so, that Rule 4.01 superceded the local rule. T. 419. It?s axiomatic that a local rule or policy cannot forbid what a state statute permits. Mangold Midwest Co. v. Village of Rich?eld, 143 813, 816-17 (Minn. 1966). Where a con?ict of law exists, the ?the statute Duluth v. Cerveny, 116 779, 785 (Minn. 1944). Thus the published, statewide Rule 4.01 preempts enforcement of the local First Judicial District Order in con?ict. See State V. Kuhlman, 729 577, .581?82 (Minn. 2007)(explaining that the preemption doctrine requires a local rule be read consistently with the state law governing the same conduct). For Ms. MacDonald to be arrested and punished, she should at least know what she did wrong. The text of Rule 4.01 defines her innocence. 21 Judge Knutson?s own reservations, too, ought to matter. Again his cross: There was absolutely no need for them to take her; fair enough? A. I would agree to tha T. 109. Moreover, Rule 6.01, Subd. 1, Minn.R.Crin1.P., mandated her immediate an arrest has been made, a-citation must'be issued in lieu of continued detention?). The Referee?s ?ndings and conclusions that Ms. MacDonald violated Rule 4.01, and thus Rules 3.4, 3.5 and Minnesota Rules of Professional Conduct are in error. Finding para. 72; Conclusions of Law, paras. 1, 4, 5. The Referee?s companion ruling that Ms. MacDonald did not competently represent her client during the second day of trial Conclusions of Law, para. 1, is likewise unsupported. On December 26, 2013, Ms. MacDonald reported Judge Knutson to the Board of Judicial Standards for forcing atrial while she was handcuffed. It was only thereafter that he complained to the Board, in January 2014, that Ms. MacDonald abandoned her client. The arrest of a lawyer during trial doesn?t happen often. There is no near akin Minnesota decision. For guidance, we look to the Nevada Supreme Court?s recent and favorable ruling. In the Matter of Conrad Hafer, Case No. 72453, ?led February 27, 2017. The facts are well worth repeating, and familiar. 22 On or about May 23, 2016, Public Defender [Zohra] Bakhtary appeared before Respondent [Judge Hafer] on behalf of another client who was present and out of custody. Ms. Bakhtary, according to investigative intei views with witnesses. .Repeatedly interrupted Respondent. The respondent told her to be ?be quiet? and ask her if she wanted to be found 1n contempt. She continued to argue for lenience for her client as Respondent issued his ruling. The Respondent ordered his bailiff to handcuff Ms. Bakhtary and seat her in a chair located next to the jury box. Respondent then proceeded with his ruling, sentencing the defendant to six (6) months injail, without the defendant having the assistance of counsel. At the conclusion of this hearing, the transcript shows the Respondent told his bailiff to ?un?cuff Zohra?, stating, think she?s learned a lesson.? During her investigative interview, Ms. Bakhtary stated the Respondent precluded her from advocating for her client, who she knew was facing jail time. She also said she was trying to calm the situation and was not arguing with the Respondent. Order at p. 3, para. D. For allowing a lawyer to be handcuffed in court, and other conduct, Judge Hafer agreed that he had violated the Nevada judicial canon, requiring him to ?act. at all times in a manner that promotes public con?dence in the independence,? with ?integrity and impartiality of the judiciary,? ?fairly and impartially? by ?avoiding impropriety and the appearance of impropriety.? By ?failing to allow every person who has a legal interest in a proceeding, or that person?s lawyer, the right to be heard according to law,? and failing to be ?dignified and courteous to litigants . . . and lawyers . . Judge Hafer was found to be at fault. Nor did he 23 dispute the Public Defender?s handcuf?ng ?precluded her from advocating? at that hearing. Order, at p. 3. The Nevada Supreme Court barred Judge Hafer from ever being ajudge again. Minnesota?s-Rules of judicial decorum are similar to Nevada?s. Canons 1, Rules 1.1 and 1.2, Minnesota Code of Judicial Conduct (the avoidance of impartiality and the appearance of impropriety and the promotion of public confidence); Rule prohibition against harassment); Rule 2.6 (assuring the lawyer?s right to be heard); Rule 2.8 (maintaining decorum); and Rule 2.12 (the requirement that the Judge supervise ?court staff, court of?cials and others subject to the judge?s direction and control to act in a manner consistent with the judge?s obligations under this Code?). Ms. MacDonald?s case features facts far more severe than what happened to Ms. Bakhtary in Nevada. Handcuf?ng for almost an entire day of trial, as opposed to a short sentencing hearing; a thirty?hour incarceration, as opposed to an Order to ?an?cuff Zohra? after the imposition of a criminal sentence. The Referee?s ?ndings that Ms. MacDonald could have cured her status, Parasour view, a protective masking of Judge Knutson?s failure to correct her improper arrest. No lawyer should ever be handcuffed during a trial. Not the public defender, who ?repeatedly interrupted? 24 the tribunal in Nevada. Surely not Ms. MacDonald, for taking a rule-permitted photograph. The Referee?s conclusion that Ms. MacDonald interrupted the Court by her arrest and detention, para. 5, is refuted by the Nevada Supreme Court'decisiOn. That Order runs against Judge Knutson?s opinion that he had ?no choice? but to file a complaint against Ms. MacDonald, ?because of the manner in which I thought the case was handled. . T. 68. Tellingly, his complaint to the Board omitted mention of the handcuffs, the wheelchair. T. 9798. Judge Knutson did what Judge Hafer did. He erroneously and illegally permitting the handcuffing of a lawyer during a contested hearing. We hope the ruling of this Court, for the sake of civility alone, will be that Judge Knutson should have refrained, directly or passively, from demeaning an advocate, however imperfect her advocacy was, and whether or not, as in Nevada, Ms. MacDonald ?repeatedly interrupted? the proceedings. The decisionto shackle Ms. MacDonald, which the Court knew of and chose not to interfere, ?offends not only judicial dignity and decorum, but as to that respect for the individual which is the lifeblood of the law.? Illinois v. Allen, 397 U.S. 337, 350 Brennan, concurring). 25 11. MS. MACDONALD CANNOT BE DISCIPLINED FOR EXERCISING HER FIRST AMENDMENT PROTECTED RIGHTS TO CRITICIZE THE BENCH AND TO FILE A COMPLAINT WITH THE BOARD OF JUDICIAL CON DUCT Our constitutional claim was first addressed in State Board of Law Examiners V. Hart, 116 NW. 212, 215 (Minn. 1908), where this Court held that ?right of free speec protects the ?citizen?s sentiments on all subjects.? (citation omitted). The Referee misconstrued Hart to hold that where a matter is ?pending,? the lawyer cannot criticize the Judge. Memorandum, in the section ?False Statements and Conduct.? Hart has not since been read for that proposition. S_ee, In re Ojala, 289 108, 110 (Minn. 1979)(citing without that limitation that the case must not be pending). Hag: rejected the Referee?s protective View of Judge Knutson, that, in practical effect, ?the merits of a sitting judge may be sounded, but as to his demerits there must be profound silence.? Id. The Referee declined to cite or address up-tc-date and most relevant - authority. Former Minnesota Judges Alberto Miera and LaJune Lange made far more alarming and defamatory comments about their brother and sisters on the bench, yet both were not sanctioned. ?_ta_e In re Lange, C4-96-596 (heard before Justice Yetka, and Judges Huspeni and Maxwell and decided in 1996, appended here), and In re Miera, 426 850 (Minn. 1988). A comparison of their cases to ours is apropos. 26 In 1995, then Hennepin County District Judge LaJune Lange held a press conference in her chambers and, while robed, announced, ?[t]here is a cancer growing in the judiciary.? Lange Findings and Recommendation, appearing in our addendum. She accused-her fellow judges of ?cover-ups. threats. defamation. and united opposition to anyone who opposes their agenda.? E. She said the same sitting judges ?have intimidated. threatened lawyers. public citizens. the media and others who disagree with their methods or personal agenda.? lg. at p. 3 (emphasis added). Without an objective factual basis for her allegations, Judge Lange nonetheless believed them to be true. She listed Judges Porter and Burke and Chief Justice Keith as the offending jurists, who ?intimidated, threatened lawyers, public citizens, the media and others who disagree with their methods or personal agenda.? E- at p. 3. No doubt Judge Lange impugned their integrity, and that aof the entire Minnesota Judiciary. The Board of Judicial Conduct brought a disciplinary action. The panel found Lange?s statements critical,? I_d. at 25, and ?regrettable.? She ?could have expressed her views in more reasoned, less in?ammatory language.? Her allegations, though rooted in a subjective and unproven fact miasma, were not actionable. E. at 31. 27 Judge Miera called his colleagues in Ramsey ?bloodthirsty hypocrites.? Ln W, 426 at 856-57. While this Court held he ?could have communicated his position in a more careful, reasoned fashion,? what he said and 7 evidently meant did not warrant sanction. m. at 857. In his defense, ?Judge Miera?s colleagues publically commented on his position as a defendant in a perm action. In a dismaying lapse of discretion, one even hosted a victory party in chambers to celebrate . . m, 426 at 867 (emphasis added). mange and establish a high bar fordiscipline, Judges may criticize the bench with far harsher language than Ms. MacDonald ever imaged, and escape sanction. Put another way, when Judges like Miera and Lange criticize a fellow judge or judges, or a Chief Justice, based upon subjective anomie,_nothing happens. But when Ms. MacDonald complains about an needless and embarrassing arrest, the judge who permitted it suddenly has an emboldened voice. His ethics complaint is accepted, while hers is not. In In re Lange, Judge Stephen Maxwell, dissenting, offered this prescient caution: The majority?s ?nding that Judge Lange?s Public Statement did not violate Canons 1 and 2A of the Code of Judicial Conduct, Rules of the Board on Judicial Standards, and Rules of Professional Conduct and its recommendation that the charges against Judge Lange be dismisses, ensure that this type of judicial conduct becomes a template for the conduct of judges. Judges will be able to 28 criticize publicly any other judge with whom they disagree, and who they think has behaved less that courteously; judicial candidates will be less restricted in criticizing their opponents; the interest of a disappointed or disgruntled judge in publicly defying the judicial system will supercede the interest of the system in protecting and preserving itself. Nor will erosion stop with judges: they will be ineffective in holding attorneys and ?litigants to higher standards of civility and respect than they observe themselves. The Minnesota Judiciary will be rendered impotent as disrespect becomes Mann; 1d. at (emphasis added). Judge Maxwell was correct in that the net result, endorsed by the Referee?s Findings and Conclusions, is that Ms. MacDonald be held to a higher, hence unfair, standard. Beyond Minnesota, the case law supports Ms. MacDonald?s First Amendment right to criticize. The most famous involved a lawyer named Yaginan, who described his Judge as being ?dishonest? and ?a bully? and ?anti? semitic? and yet avoided discipline. Standing Committee on Discipline v. Yagman, 55 .31?d 1430, 1434 n. 4 (9th Cir. 1995). Mr. Yagman?s opinion, much like Ms. MacDonald?s claim that Judge Knutson was not impartial, was based upon his own subjective experiences and those of others; his comments did interfere ?with the administration of justice.? 1d. at 1445. Mr. Yagman?s criticism concerned the Judge presiding over a pending case 3 at 1434, and undercuts the Referee?s ruling that if a case is pending, no 29 criticism is warranted. Memorandum at p. l. ?gm?s rationale is consistent with this Court?s black letter law: an individual?s subjective 6pm is afforded First Amendment protection. wcco Television. Inc., 449 497, 501 (Minn. l990)(citing Janklow v. Newsweek Inc, 788 F.2d 1300, 1306 (8th Cir. (en banc)), m. denied, 479 U.S. 883 (1986). Ignoring mm, the Referee relied instead on In re Graham, 453 N.W.2di 313 (1990), cert. denied sub nom, Graham V. Wernz, 498 U.S. 820 (1990) and I__n re Torgerson, 870 602, 609 (Minn. 2015). Memorandum at pp. 3?4. Lawyer Torgerson was accused of writing improper fee agreements, disobeying court orders, and mistreating the Court staff with belligerent comments. Her primary offense in refusing to even appear in court as directed did not feature a First Amendment defense. 870 at 606. Fee agreements tend not to matter when the lawyer is litigating pm bono. And Ms. MacDonald did show up. In ?rm, discipline was imposed not because the lawyer?s criticism of the bench couldn?t occur, but because it was based upon ?non-existent evidence.? m. at 324; accord In re Nathan, 671 578 (Minn. 2003)(distinguishing the ?assertion of fact? as not necessarily an ?opinion?). Ms. MacDonald?s arrest was filmed. 30 The reckless disregard standard of Rule 8.2, MCPR, and adopted by the Referee, Memorandum atip. 3, had for its source New York Timesv. Sullivan, 376 US. 254, 279?80 (1964), the preeminent First Amendment case involving the freedom of the press. gm, 453 at 320-21. Within a year of __G,r_al,1_am, however, the Supreme Court decided Gentile V. State Bar of Nevada; 501 US 1030 (1991), another case left unmentioned by the Referee, where at a post- arraignment press conference, the lawyer named Gentile promoted his client?s innocence, stating that the authorities had not ?been honest enough to indict the people who did it; the police department, crooked cops.? 1d. at 1059. He was Board disciplined, and appealed. The Supreme Court reversed, holding that Nevada?s Rule 177 restricting a lawyer?s speech if it had ?a substantial likelihood of prejudicing pending legal proceedings? was ?imprecise? and risked discriminatory enforcement. id. at 1051. Minnesota?s Rule 8.4 contains a similar vagary, prohibiting a lawyer from ?engag[ing] in conduct that is prejudicial to the administration of justice.? See Conclusion 6, finding this standard Ms. MacDonald violated. As here, Mr. Gentile?s ?words were directed at public of?cials and their conduct in of?ce,? and as such were extra worthy of First Amendment protection. 1d,. at 103 4-35. Gentile refutes, too, the Referee?s incorrect em hasis that if a case is endin 31 the lawyer may not criticize, but if it?s over she can. reliance on the New York Times v. Sullivan standard, set out in Rule 8.2 and 8.4, has since been. criticized. The Ninth Circuit holds that the ?reckless disregard? language ?is not suited to attorney disciplinary proceedings.? M: 55 F.3d at 1437 (citing United States Dist. Ct. v. Sandlin, 12 F.3d 862, 867 (9?h Cir. 1993)). Rather, the inquiry should focus ?on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made.? lg. Under this standard, ?[l]awyers may freely voice criticisms supported by a reasonable factual basis even if they turn out to be mistaken.? E. at 1438. ?It follows that statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they ?imply a false assertion of fact.?? E. (quoting Milkovich v. Lorain Journal Co., 497 US. l, 19 (1990)). Whatever standard this Court wishes to use, our case differs from Qr_ah_a_m and Torgerson because the bulk of Ms. MacDonald?s comments concerning Judge Knutson were based upon fact?supported opinions about his unfairness. It?s true, he did nothing to stop her needless arrest. Nothing to prevent her thirty?hours of incarceration. 32 It?s also worth noting that the First Amendment protections have expended since Graham. Snyder v. Phelps, 562 US. 443 (2011), left un?distinguished by the Referee, provides a current analysis of First Amendment law. In 8mm, Fred Phelps would travel to the funerals of Iraqi war casualties. With pickets in hand stating, mm Lia, ?Thank God for Dead Solders,? ?God Hates Fags,? ?God Hates You,? and ?Thank God for 131 at 1213. Mr. Phelps, who held the signs with his daughters and grandchildren and on behalf of his Westboro Baptist Church, was sued by Albert Snyder, father the deceased soldier, for defamation, and intentional in?iction of emotiOnal distress among other torts. A jury awarded $2.9 million in damages. The Supreme Courtjoined the Fourth Circuit in reversing on First Amendment grounds. Chief Justice Roberts emphasized that ?speech on ?matters of public concern? . . . is ?at the heart of the First Amendment Protection.?? E. at 1215 (quoting Dunn and Bradstreet. Inc. v. Greenmoss Builders. Inc., 472 US. 749, 758? 759 (l985)(opinion of Powell, First Nat. Bank of Boston v. Bellotti, 435 US. 765, 776 (1978)). He observed that the First Amendment re?ects ?a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.? E. (quoting Mn, 376 US. at 270). ?[S]peeoh concerning public affairs is more than self?expression; it is the essence 33 of self?government.? E. (quoting Garrison v. Louisiana, 379 U.S. 64, 74,75 (1964)). That public speech is entitled to ?special protection.? Id. (quoting Connick v. Myers, 461 U.S. 148, 145 (1983)). While the signs and messages in Snyder were ?particularly hurtful to many,? and caused ?already incalculable grief,? m. at 1218, the content was still protected. Speech is powerful. It can stir people to action, move them to tears of bothjoy and sorrow, and - as it did here in?ict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not sti?e public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case. E. at 1220 (emphasis added). Snyder is cited with approval in Cainreta v. Greene, where Justices Kennedy and Thomas, dissenting on an unrelated grounds, recognized that the First Amendment may be raised by a defendant ?as a defense against criminal prosecution, civil suit, or cruel and unusual punishment.? 563 U.S. 692, 728 (2014)(citing Snyder). Hence Snyder isn?t limited to the facts of that case, but rather to the far larger idea: that threatening and even false verbiage (thought to be subjectively true) may Well be protected speech. It turned out to be irrelevant whether or not the defendants in Snyder really believed that God approved of the killing of United States soldiers in Iraq. 34 The First Amendment ?protects speech and the speaker, and the ideas that ?ow from each,? Citizens United v. Federal Election Commission, 558 US. 310, 341 (2009), and for that reason ?must [be] give[n] the bene?t to any doubt to protecting rather than sti?ing speech.? I_d. at 327 (citation omitted). Mg involved a public event, a funeral, just as our case involved a public event, a trial, and public ?gures (both Judge Knutson and Ms. MacDonald). In light of Slim, Ms. MacDonald?s critique of Judge Knutson?s passive acquiescence vis?a-vis her arrest quali?es as ?a matter of public concern.? SE also State v. Peter, 798 552, 555 (Minn. Ct. App. 2011)(ernphasizing M?s holding that matters of ?public concern? fall into the ?heart of First Amendment protection?). Also in light of m, Ms. MacDonald had every' right to ?le a complaint to the Board of Judicial Standards ?uninhibited? by the threat of sanction. She could criticize the Court?s actions in letters to colleagues, and in pleadings to an appellate court. Ms. MacDonald?s contribution to the needed discourse a challenge to the imprOper arrest and cuf?ng of a lawyer should be, ?robust? and ?wide~open.? The Referee?s Conclusion errs in suggesting that she could not complain ?in multiple forums.? Para. 6. That there may be, as the Referee suggests, in Findings paras. 106, 107, 35 ?contradictory opinion[s] on the same facts,? is not a basis to sanction. Ya man, 55 F.3d at 20 (quoting Lewis v. Time. Inc., 710 F.2d 549, 555 (9th Cir. 1983)). The Yagman opinion went even further, holding that the lawyer?s criticism of the bench interfered with the administration of justice only if his statements presented a ?clear and present danger.? m. at 1442. Mr. Yagman?s ?un?attering remarks? about his judge, calling him a ?buffoon,? ?sub-standard,? a ?right?wing fanatic,? a bully? and ?ignorant,? did not result in sanction not because they were opinions, but because the Court was not in any way placed in the way of a discernable harm. 1d. at 1440. Ms. MacDonald, who harmed no one, was arrested after ?ling a lawsuit against a sitting judge. The Court knew about her handcuf?ng, and did nothing to stop it. The two sets of facts the lawsuit and her immediate arrest are not divorced from one another. Her resulting comments about Judge Knutson, even if considered ?harsh and intemperate,? are not sanctionable. Yagrnan, 55 F.3d at 1444. Before ending our discussion of First Amendment law, mention should be made of judicial elections, and what is permitted to be said in that arena. In Republican Party V. White, 536 US. 765 (2002), the issue was ?Whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for 36 judicial election when in that State from announcing their views on disputed legal and political issues.? 151. at 768. At initial blush, the issue with respect to Ms. MacDonald is different the criticism of an acting judge the fact remains that she did run for Supreme Court Justice (against Justice Lillehaug and Justice Hudson). S_ee, generally ?In MN Supreme Cou?rt race, Natalie Hudson defeats Michelle MacDonald,? by Tory Cooney, St. Paul Pioneer Press November 8, 2016; see also Exh. 120, Ms. MacDonald?s resume, noting that she secured 46.54% of the votes in her contest with Justice Lillehaug. set aside Minnesota?s canon of judicial conduct that prohibited ?candidates for judicial election from announcing their views on disputed legal and political issues.? E. at 788. The rationale of White was that since Minnesota permits judicial elections (as opposed to life-time appointments), ?it must accord the participants in that process . . . the First. Amendment rights that attach to their roles.? id. at 788 (quoting Renne v. Geary, 501 US. 312, 349 (1992)(Marshall, ., dissenting)). On remand, the Eighth Circuit, M, held a judicial candidate?s ability to speak on the disputed legal issues and to af?liate with a political party and to solicit campaign funds were all protected by the First Amendment. Republican Party of Minnesota v. White, 416 F.3d 838, 759-766 (8th Cir. 2005). 37 Ms. MacDonald had the absolute right to speak about a disputed legal issue: the handcuf?ng of lawyer and its propriety. If she were a candidate running against Judge Knutson, she could criticize his conductfruling permitting the same. As a private lawyer, she ought to be able to do the same thing. 111. MS. MACDONALD WAS PERMITTED TO BELIEVE HER REPRESENTATIONS IN GOOD FAITH, AND ACT UPON WHAT SHE HAD BEEN TOLD The Comment to Rule 8.2, holds that a lawyer may not be disciplined for ?[e]xpressing honest and candid opinions . . that contribute ?to improving the administration of justice.? Ms. MacDonald?s conduct and vocalized perceptions are shaded not just by the First Amendment and the relevant rules, but by Manness V. Myers, 419 US. 449 (1975). ?The advocate has a duty to use legal procedure for the fullest bene?t of the client?s cause . . Rule 3.1, Comment. Per Rule 3.3, that Ms. MacDonald was ?responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client?s behalf, and not assertions by the lawyer.? Under this Rule, if a complaint turns out to be wrong factually or legally ill-advised, discipline is not appropriate. 38 The Referee found fault in Ms. MacDonald?s civil rights lawsuit against Judge Knutson, in particular the claim that he retaliated against her and Ms. Grazzini?Rncki. Findings at para. 102. The Referee also took issue with Ms. MacDonald?s claims that JudgeKnutson?s decisions to begin the trial without two of the Grazzini?Rucki children present, how he unfairly quashed the attorney?s fee subpoenas, how his handcuf?ng and placing her in a wheelchair suggested evidence of his retaliation. Findings at paras. 106?107. We disagree. In Manness, a Texas lawyer had been held in contempt for advising a client to assert a Fifth Amendment claim in response to a Court authorized subpoena, which required production of incriminating pornographic magazines. Id. at 451. Reversing, the High Court determined that the lawyer ?performed his duties as an advocate here, and he cannot suffer a_ny penalty for performing such duties in gM Id. at 470 (emphasis added). Even assuming, arguendo, the lawyer?s advice in Manness was incorrect, punishment still could not be imposed. In the ordinary case of advice to clients, if an attorney acts in go_ogl_ faith and in the honest belief that his advice is well founded and in the just interests of his client. he cannot be held liable for error in judgment. The preservation of the independence of the bar is too vital to the due administration of justice to allow of the application of any other general rule. 419 US. at 467-468 (quoting In re Watts, 190 US. l, 29 (1903))(emphasis added) 39 Minnesota law is in accord withManness. In File No. 17139, 720 807, 814 (Minn. 2006), this Court held that a lawyer?s ?sources and information they conveyed to (her) are critical to determining whether (she) acted with reckless disregard as to the falsity of (their) statement[s}? 1g. at 814; accord Meagher v. m, 97 370, 375 (Minn. 1959)(holding the ?attorney who acts in good faith in an honest belief that [her] advice and acts are well founded? is immune from fault; as is a ?mistake in point of law?). No. 17139 and __K_a_yli impose a subjective standard, whether the lawyer believes her sources. In error, the Findings impose a reasonable person/lawyer standard, Para. 107 The Board failed to rebut Ms. MacDonald?s testimony that she relied in good faith on the facts presented to her by Ms. Grazzini?Rucki, who veri?ed the federal civil rights complaint against Judge Knutson as true and accurate. T. 411. MacDonald, the last in the string of lawyers, thought she was entitled to believe her client. T. 411. She had no basis to disagree. Compare Whiteside, 475 US. 157, 168?69 (1986)(holding the lawyer is permitted to move to withdraw if he believes the client is about to present false testimony). In light of Manne-ss, Ms. MacDonald could bring the claims based upon those assurances, even if the Referee thought otherwise. Memorandum, in the section ?Disruption of Proceedings.? The Referee?s retort that Ms. MacDonald 40 should have been aware of what her client?s prior lawyer had done and representations made assumes that Ms. Grazzini-Rucki told her so. 53% Referee?s Memorandum, under the section ?False Statements and Conduct.? No testimony from Ms. Grazzini-Rucki was presented by the Board. It?s Ms. MacDonald?s thoughts of good faith that ultimately matter. Manness, And not just her belief, gained by her arrest and the thirty?hours spent in jail, that Judge Knutson violated her civil rights. From that deplorable event, which the Referee erroneously suggests she ?orchestrated,? Memorandum, under the section ?Disruption of Proceedings,? Ms. MacDonald had reason to question the udge?s impartiality going forward and backwards in time. We address briefly, for the sake of completeness, the Referee?s additional criticisms'of Ms. MacDonald?s legal acumen. Her statement, to the effect that she was not ready to proceed with the trial, Findings at para. 44, was tied to her recusal motion, which she thought should have been granted. As to the merits of the divorce, was ready to proceed,? she testified. had prepared Sandra in the event of trial.? T. 228. Ms. Grazzini?Rucki took the stand during the ?rst day and testi?ed, as she had to do, about the best interest factors. She was, in Ms. MacDonald?s reasonable View, the best person to testify as to the custody issues, the factors to be considered. T. 153. The Referee?s Conclusion that Ms. .. 41 MacDonald did not competently represent her client is mistaken. Conclusions of Law, number 1. To the extent the Referee challenges the strategy of presentation, that?s beyond discipline. Ms. MacDonald, in good faith, believed the subpoenas to Ms. Grazzini? Rucki?s lawyers were necessary. The lawyer for her husband, Ms. Lisa Elliot, confirmed she would not stipulate as to foundation. T. 159. The Referee mistakenly found that the costs of attorneys fees could have been proven by Ms. Grazzini-Rucki, Findings at para. 32, leaving out the fact that she had no records. By Court Order, she had been removed from own house, where they presumably were. T. 171. The resulting fee Sanction for serving the subpoenas was appealed. Ms. MacDonald?s arguments were rejected, but she was allowed, with honest and good faith belief, to make them. About eighty?five percent of the litigants who question - a lower court end up disappointed again after an appeal. But they all had the right to try for a reversal. Thus we take issue with the Referee?s Conclusion that this litigation was unethical. Conclusions of Law at para. 2. Ms. MacDonald also appealed the United States District Court Order dismissing lawsuit against Judge Knutson. The Eighth Circuit made no ?nding of frivolousness. 597 Fed. Appx. 902 Cir. 2015). Ergo, we take issue with the 42 Referee?s Conclusion that the lawsuit and her comments to the Board were ?in reckless disregard for the truth.? Conclusion at para. 6. Concerning the D?Costa trial and the Referee?s criticism of how the trial was conducted, Ms. MacDonald?s testimony was that her client was dif?cult, disorganized, angry, and didn?t get the exhibits to her on time. The Board did not challenge that testimony, and declined to call Mr. D?Costa. The $16,000.00 fee award was imposed upon the client, not Ms. MacDonald, and he didn?t complain about it. T. 395, 397. The fee award was taken out of the assets split. T. 390. Ms. MacDonald aptly described the trials as ?dif?cult sledding.? T. 386. The Referee?s Conclusion that Mr. D?Costa?s conduct was Ms. MacDonald?s singular fault, made without hearing from Mr. D?Costa, the Judge, or opposing counsel, remains unproven and unfair. Conclusions of Law at para. 7. As to the claim that Ms. MacDonald did not ?le post?trial motions for what was a trial to the Court, judicial notice may be taken that factual ?ndings, particularly witness credibility, are irreversible on appeal. That was Ms. MacDonald?s more than reasonable observation, con?rmed in appeal after appeal when the trier of fact is the Court. Rule 52.01, (?ndings ?shall not be set aside unless clearly erroneous?). Mr. D?Costa requested an appeal. T. 390. He approved of the brief and the 43 way the issues were raised. T. 392. Ms. MacDonald believed the constitutionality of the statute was to be reviewed Q: novo, a venue where this court ?is not bound by the lower court?s conclusions.? In re Blilie, 494 877, 881 (Minn. l993)(quoting Sherek v. Independent sch. Dist. No. 699. Gilbert, 449 434, 436 (Minn. 1990)). In any event, the Referee suggests that Ms. MacDonald?s conduct concerning the subpoenas, her failure to make a proper record for Mr. D?Costa, and the failure to perfect Ms. Grazzini?Rucki?s appeal should not be deemed sanctionable. Memorandum, under the heading ?Lack of Competence.? To that end recommendation, at least, we agree. But that concession is internally inconsistent with Conclusion 1, ?nding of a violation of Rule 1.1, the failure to provide competent representation. And Conclusion 2, that the subpoenas violated Rules 3.1 and 4.4 in that they lacked a basis and therefore somehow violated the rights of a third party, or were prejudicial to the administration of justice. Rule 8.4. IV. WHERE THE MITIGATING FACTS FAR OUTWEIGH THE MITIGATING FACTORS, DISCIPLINE OF WAS UNWARRANTED, AS WAS THE SUGGESTION FOR A EVALUATION We take issue with the Referee?s suggested sixty-day suspension coupled with two years of probation and a proposed ?mental health evaluation.? 44 The record describes at twenty?nine year career rooted in public service and p_r_q efforts, with clients who have not complained about her, and who have accepted the sanctions for the strategies she effectuated on their behalf. Standard or Review The question of discipline is discretionary, Torgerson, 870 at 615 (citing In re Evans, 461 226, 228 (Minn. 1990)), with great weight given to the Referee?s recommendations. In re Selmer, 529 at 687. Discipline is not designed to punish the lawyer so much as to protect the public and the judicial system and to deter further conduct. In re Grif?th, 838 792 (Minn. 2013); In re Plummer, 725 96, 98 (Minn. 2006). Merits The factors to consider for discipline include 1) the nature of the alleged misconduct; 2) the cumulative weight of the disciplinary violations; 3) the harm to the public; and 4) the harm to the legal profession. Torgerson, 870 at 615. The ?nature of the alleged misconduct,? is the taking of a picture when court was not in session; subpoenas issued for fee evidence in a divorce case concerned with awarding fees; dismissal of an appeal without a concomitant malpractice claim by an otherwise contented client. The failure to properly object and 45 preserve an issue, a plain error mentioned in scores of appellate decisions each year that do no result in discipline. And an attorney?s sporadic interruptions of the Court during a high stakes trial. The most signi?cant claims Ms. MacDonald?s lawsuit and complaints against Judge Knutson are protected conduct, and even if not protected were made in good faith reliance on her client. As to the second factor the cumulative weight Ms. MacDonald has been the subject of a previous private reprimand for conduct, she testi?ed, caused by an associate who was ill and who passed away before he himself could be disciplined. Finding para. 139. T. 383. Nothing else appears. Three decades with just one complaint, against an associate no less, is a record to be proud of, most would say. Her long career, the Referee ?nds in error, is an ?aggravating factor.? Finding para. 138. Likewise, the ?nding that such a record ?is neither mitigating nor aggravating? is mistaken. Finding para.l39; In re Wyide, 4S4 423 (Minn. 1990) (recognizing the lawyer?s career as a reason to impose a lesser sanction). Ms. MacDonald served the Hennepin County Conciliation and Family Courts for two decades. T. 38132. The Referee omits mention or duration. Compare Findings 133-139. Serving as a Judge is part and parcel should be a 46 lawyer?s laudatory ambition. Ms. MacDonald?s extensive lac?no work is a mitigation. In re Wylde, 454 at 424 (lawyer?s pro bono efforts mitigated the Board?s proposed discipline of a two year suspension; two years probation imposed instead). The Referee?s refusal to credit similar signi?cance, Para. 133, is mistaken. Regarding the third and fourth factors, Ms. MacDonald has not harmed the public nor the profession. She has run for Minnesota Supreme Court Justice on two occasions, barely lost to Justice Lillehaug and was close in the race against Justice Hudson. ?1 got nearly a million votes,? she said, referring to the latter race. T. 442. A large percentage of the public found her to be the preferred choice IN 2014. She won 46.54% of the vote. We do wonder, just for the sake of wondering, if any other lawyer, besides one who had run against the judiciary, would have been disciplined, arrested and handcuffed for taking a photograph of an empty courtroom. The Bar has been bettered by her presence. Ms. MacDonald has tried to challenge what she perceives to be the unfairness of family court litigation. The costs fall beyond what the middle class can afford. To take a deposition nowadays runs over a thousand dollars. Previous lawyers from Ms. Grazzini?Rucki charged 47 almost $200,000.00, then left her. Mr. D?Costa couldn?t pay for an appeal. Ms. MacDonald wrote one for him for free, if he would cover the transcript, which he did. ?It?s very, very sad for my client and that?s why I appealed,? she said. T. 367. Ms. MacDonald is not in need of a ?mental health evaluation? that the Referee suggests. The Board did not allege mental illness, or a failure to address it. Ms. MacDonald was never required to submit to an evaluation in order to receive a law license almost thirty?years ago. The suggestion that she undergo an evaluation diminishes her hard?earned reputation. The suggestion, moreover, erroneously infers that a ?lture waiver of the patient/physician privilege is warranted in order to keep a law license. An attorney is not odd or ill if she does pro bono work. If she says the legal system, as it stands, needs improvement. If she assures the af?icted client, believe you.? Or concurs with the client?s request to appeal against all odds of winning. - Judge Jed S. Rakoff?s article, ?Why You Won?t Get Your Day in Court,? New York Review of Books, November 24, 2016, observes that ?today as 'many as two thirds of all individual civil litigants in state trial courts are representing themselves, with studies showing that rate is up to 90% in the family court setting. 48 Judge Rakoff points out, that ?[i]ndividuals not represented by lawyers lose cases at a considerably higher rate than similar individuals who are represented by Counsel.? ?As a practical matter, such unrepresented litigants are effectively denied a fair day in court.? Judge Rakoff adds that ?most observers agree that the primary reason so many Americans are unrepresented in court is that even people of moderate means simply cannot afford a lawyer.? This economic reality has contributed, in Judge Rakoff?s words, to ?the belief of citizens that the courts are not an institution to which they can turn for justice, but are simply a remote and expensive luxury reserved for the rich and powerful.? We reference Judge Rakoff?s article, published in a. renowned journal, to emphasize the importance of what Ms. MacDonald Was trying to do for her clients who could not afford to litigate against better ?nanced spouses. To level what she and Judge Rakoff perceive as an unfair playing ?eld. couldn?t turn her away,? Ms. MacDonald said of Ms. Grazzini?Rucki. T. 399). couldn?t have her go it alone.? 1d,. These sentences, refreshing to read, point to Ms. MacDonald?s commitment to combat the ?expensive luxury? that is otherwise?known as a divorce trial. The Referee credited her efforts, albeit marginally and without emphasis, as 49 if for naught. Finding 133. The Board?s evidence did not, nor could it, rebut the intrinsic value of Ms. MacDonald?s distinguished career,_providing a voice to those who don?t believe they have one. The Lawyers 1m b_Q_n_g award was given to her in 2013, 2014, and 2015. T. 379. 50 CONCLUSION What happened to this of?cer of the court should not happen again. The handcuf?ng of a lawyer in trial will always be inexcusable. Ms. MacDonald had an abundant right to complain and voice concern, so that the public would be made to know what occurred, and then-could decide if the Judge, who is subject to scrutiny by elected status, made an improper decision. Discipline is not warranted. Dated: April 5, 2017 Respectfully submitted, Paul Engh Paul Engh, Lic. 134685 Suite 420. 200 South Sixth Street Minneapolis, MN 55402 612.252.1100 Lawyer for Ms. MacDonald 51 CERTIFICATE OF COMPLIANCE I hereby certify that Ms. MacDonald?s Brief in case complies with the Minnesota Rules of Appellate Procedure 132.01, Subd. and that the brief contains 11,100 words. The Brief was prepared using WordPerfect (2005), and complies with the typeface requirements of Rule 132.01. Dated: April 5, 2017 Paul Engh Paul Engh 52 A16-1282 STATE OF MINNESOTA IN THE SUPREME COURT In Re Petition for Disciplinary Action against MICHELLE LOWNEY A Minnesota Attorney Registration No. 182370 ADDENDUM. Paul Engh, Lie. 134685 Susan Humiston, Lie. 254289 Suite 420 Director, Of?ce of Lawyers 200 South Sixth Street Professional Responsibility Minneapolis, MN 55402 345 St. Peter Street 612.252.1100 St. Paul, MN 55102 ATTORNEY FOR RESPONDENT ATTORNEY FOR PETITIONER ADDENDUM 1. The Referee?s Findings of Fact and Conclusions of Law 2. In the Matter of Conrad Hafer, In the Supreme Court of Nevada 1 3. In Re Lange (relevant excepts) 8 A164 282 January 3, 2017 STATE OF MINNESOTA amazes IN SUPREME COURT In Re Petition for Disciplinary Action against FINDINGS OF FACT, CONCLUSIONS OF MICHELLE LOWNEY LAW, RECOMMENDATION FOR A Minnesota Attorney DISCIPLINE AND Registration No. 0182370 MEMORANDUM The above-entitled matter came before The Honorable Heather L. Sweetland, acting as Referee by an Order of Appointment of the Minnesota Supreme Court ?led September 14, 2016, for hearing on November 15-16, 2016. Director Susan M. Humiston (License No. 0254289), 1500 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102-1218, appeared on behalf of the Office of the Lawyers Professional Responsibility. Paul C. Engh (License No. 134685), 200 South Sixth Street, Suite 420, Minneapolis, MN 555402, appeared on behalf of Respondent Michelle Lowney MacDonald who was-present at all times during the hearing. The hearing was held based on the Director?s July 13, 2016, Petition for Disciplinary Action. District Court Judge David Knutson, Attorney Lisa Elliott and the Respondent testified at the hearing. Exhibits 1~64 (hereinafter D. Ex.) were offered and admitted, with no objection, on behalf of the Director. Exhibits 101-129 (hereinafter R. Ex.) were offered and admitted, with no objection, on behalf of the Respondent. The referee takes judicial notice of the documents filed in the Register of Actions for the Grazzini?Rucki proceeding (D. Ex. 1; R. Ex 108 (partial)) admitted as part of the evidence. I Based on the testimony and exhibits adduced at said hearing and upon all ofthe files and records herein, the Referee makes the following: FINDINGS OF FACT 1. Respondent, Michelle Lowney MacDonald (hereinafter Respondent), was admitted to practice law in Minnesdta on September 11, 1987. (Minnesota Attorney Registration System 2. Respondent primarily practices in the area of family law but also provides estate planning services and appellate work. (R. Ex. 120) Her current law firm, MacDonald Law Firm, LLC, employs other attorneys besides herself and a paralegal and has been in business since 2004. (R. Test; R. Ex. 120) 3. Respondent founded and is president of Family Innocence, a non?profit organization, which advertises affordable mediation and restorative family circle facilitators in family court proceedings. (R. Ex. 120, 121, 122) She assisted in writing a legislative bill to amend or abolish the current family law statutes. (R. Ex. 129) 4. Respondent has provided extensive pro bono assistance. (R. Test, R. Ex. 120) Grazzini-Rucki Case-Pre-Trial Proceedings 5. ReSpondent first met Sandra Grazzini-Ruoki on January 1, 2013 at a social held by Family Innocence. (D. Ex. 20, Factual Aliegation 99; R. Test.) Ms. Grazzini-Rucki was the petitioner in a dissolution proceeding pending since 2011 in Dakota County (Minnesota Case File No.: (D. Ex. 1) . Prior to January 1, 2013, Ms. Grazzini-Ruoki had been represented by at least three attorneys in her dissolution proceeding, namely, Graves, Linda Olup and Elizabeth Henry. (D. Ex. 1; D. Ex. 23-25) Elizabeth Henry had withdrawn as Ms. Grazzini~Rucki's attorney on November 7, 2012. (D. Ex. 1) . The dissolution case was ?led in Dakota County, Minnesota, on April 21, 2011. (D. Ex. 1) Judge David Knutson was randomly assigned to the case in August 2011 pursuant to the suggestion of Ms. Grazzini-Rucki?s then attorney Graves) due to the complexity of the case. (Elliott Test; Knutson TestAccording to Respondent, Ms. Grazzini-Rucki told Respondent a story of being evicted from her home and not allowed to have contact with her five children based on a September 7, 2012, Order. (R. Test.) Respondent reviewed the court file at the Dakota County Courthouse over a period of three days. (R. Test.) After again meeting with Ms. Grazzini-Rucki, Respondent agreed to represent her on a constitutional challenge to Minn. Chap. 518, etseq. (R. Test.) . Later, at a June 12, 2013 hearing, Respondent confirmed she was representing Ms. Grazzini~Rucki regarding the custody, parenting time and child support issues still outstanding in the dissolution proceeding. (D. Ex. 47, p. 52) 10.Since 2011, Respondent believes she has a ?calling? to abolish the Minnesota family court system. In Respondent?s opinion, Minn. Chap. 518, et.seq.. is unconstitutional due to its complexity and-the State?s interference in matters best left to the family to resolve. (R. Test.) 11.Respondent filed her Certi?cate of Representation in the Grazzini?Rucki case on January 18, 2013. (D. Ex. 1) 12. Respondent?s filed a motion challenging the constitutionality of Minn. Chap. 518, et.seq., generally and specifically as it was applied in Ms. Grazzini? Rucki's case based on the September 7, 2012 Order entered by Judge Knutson. (D. Ex. 1; R. Test.) In that Order, custody of the ?ve minor children was given to a third party (the children?s aunt) in the family home. (R. Ex. 104) 13. Respondent has argued the constitutionality of Minn. Chap. 518, et.seq., in several courts. No court has given Respondent?s clients relief based on Respondent?s arguments. (R. Test.) 14.?Based on Ms. Grazzini-Rucki's rendition ofthe events of September 2012 and Respondent?s review ofthe file, Respondent believed the September 7, 2012, Order was the result of ex parte contact between Judge Knutson and Lisa Elliott, Mr. Rucki?s attorney. (R. Test.) Respondent testified she believed Judge Knutson signed the Order presented to him by Ms. Elliott without reviewing it. (R. Test; D. Ex. 24) 15. Respondent did not contact Ms. Elliott to discuss the background surrounding the entry of the September 7, 2012, Order, prior to filing the constitutional challenge. (Elliot Test; R. Test.) Respondent is ?unsure? if she contacted Elizabeth Henry. Ms. Grazzini?Rucki?s attorney at the time of the September 7, 2012, Order, to confirm Ms. Grazzint-Rucki's summary of the events surrounding entry of the Order. (R. Test.) 16. Neither Respondent nor Ms. Grazzini-Rucki requested a copy of Ms. Henry?s file until October 22, 2013, ten months after Respondent filed her Certificate of Representation. (R. Testfact, the September 7, 2012, Order was filed by mutual agreement of the parties? attorneys and the guardian ad litem (Julie Friedrich) after receipt of a report from Dr. Paul Reitman (a court-appointed and Ms. Grazzini-Ruckt?s statement of August 28, 2012, that she did not want custody of the children. (Knutson Test; Elliott Test; R. Test; D. Ex. 64; R. Ex. 104, p. 10) The Order was drafted by Ms. Grazzini-Rucki?s attorney, Elizabeth Henry, after a telephone hearing on the record with counsel for each party and the guardian ad litem. (Knutson Test; Elliott Test, R. Ex. 104) The written Order reflects Ms. Henry?s involvement in the telephone hearing. (R. Ex. 104) 18.The transcript ofthe September 2012 telephone hearing states Ms. Henry had contact with Ms. Grazzini~Rucki "that day? (R. Ex. 104~Transcript of 9/7/12, p. 18) and her client?s request for a copy of Dr. Reitman?s report. (R. Ex. 104?Transcript of 9/7112, p. 15) 19.After a hearing on February 26, 2013 on Respondent?s constitutional challenge, Judge Knutson issued an Order on April 19, 2013. (D. Ex 64) Judge Knutson addressed the lack of legal authority for the motion and why the basis for the motion (the September 7, 2012 Order) was in error. (D. Ex. 64, pp. 11?12) Judge Knutson ruled on numerous other arguments made by Respondent on behalf of Ms. Grazzini?Rucki. (D. Ex. 64) 20.Judge Knutson explained in the Order that Elizabeth Henry, Ms. Grazzini? Rucki?s prior counsel, drafted the September 7, 2012 Order, and it was reviewed by Ms. Elliott and Ms. Friedrich. Judge Knutson outlined the procedural history, noted the involvement of counsel for both parties and the guardian ad litem, that a telephone hearing on the record had taken place prior to the Order being entered and that it was based on the recommendations of Dr. Paul Reitman. (D. Ex. 64, pp. 12-13) 21 .After the issuance of the April 19, 2013, Order, ttvo of the Grazzini-Rucki children (Samantha and Gianna) ran away and were not located until 2016. Ms. Grazzini?Rucki was convicted of two felony counts of Deprivation of Parental Rights for her abduction of the children. (R. Test.) 22.0n May 7, 2013, Judge Knutson entered an Order dismissing the guardian ad litem, Julie Friedrich, at her request. (D. Ex. 2) On May 20, 2013, an Order was entered noting any successor guardian ad litem would be designated a party to the proceedings. (D. Ex. 3) 23. On April 24, 2013, Ms. Grazzini-Rucki, pro se, filed for a stay of all proceedings to the Minnesota Court of Appeals regarding the April 19, 2013, Order. (R. Test; R. Ex. 103) In addition, Ms. Grazzini-Rucki filed a Petition for a Writ of Mandamus to the Minnesota Court of Appeals on April 29, 2013. (D. Ex. 1) The Court of Appeals denied both otthese requests on June 13, 201320) Ms. Grazzini-Rucki petitioned for review of these denials to the Minnesota Supreme Court. The Petition for Review was denied on August 20, 2013. (D. Ex. 1) Respondent notified Judge Knutson she was petitioning for certiorari to the United States Supreme Court. (D. Ex. 7, p. 6) The Petition was denied. (R. Test.) 24. Respondent filed a separate motion on behalf of Ms. Grazzini-Rucki to stay all proceedings. The motion was heard on June 12, 2013. (D. Ex. 4) Respondent interrupted the Court several times during the hearing(two times), 39, 48). Respondent was instructed by Judge Knutson to not interrupt the Court but she continued her behavior. The Respondent's interruptions disrupted the proceedings. During the instant hearing, Respondent testified that ?things just had to be stopped.? (R. Test.) 25. During the June 12, 2013, hearing, a reference was made to a separate civil Summons and Petition ?led by Respondent on behalf of Ms. Grazzini-Rucki asking that Judge Knutson?s Orders in the pending dissolution action be overturned. (D. Ex. 4, pp. 2729) Judge Knutson did not deal with the Notice to Remove ?led with the separate pleadings since the new pleadings had been ?led in the original dissolution actionsummary, Respondent filed a separate action asking for the same relief as requested in the original dissolution action. 26.At the end of the June 12, 2013, hearing, Judge Knutson scheduled trial for September 11?12, 2013, to address custody, parenting time and child support. (D. Ex. 4, p. 51) The Court stressed the matter had been pending for over two years (D. Ex. 1) and a third party had custody of the children. (R. Ex. 104, Order tiled September 7, 2012) Respondent was present at the I hearing when Judge Knutson noted Ms. Grazzini-Rucki?s lack of cooperation with the guardian ad litem and other court-appointed professionals working on the custody and parenting time issues. (D. Ex. 4, p. 47) 27.Judge Knutson denied the motion to stay the proceedings. (D. Ex. 4, p. 24) Grazzini-Rucki~Subpoena Issue 28.0n August 30, 2013, and September 3, 2013, Respondent directed an associate to serve subpoenas on Ms. GrazZini-Rucki?s former counsel (Evans (represented Ms. Grazzini?Rucki in a separate proceeding), Olup and Henry) for their appearance at the trial scheduled for September 11-12, 2013. (R. TestRespondent believed the attorneys? testimony would A hearing was scheduled for 8:30 am. on September 6, 2013 on prior counsels? motions to quash the subpoenas. (R. Test.) Prior to serving the subpoenas, Respondent did not contact the recipients to find out whether the billing information could be provided without the need for a subpoena or their testimony. (R. Test; D. Ex. 7, p. 19 (Evans), pp. 21?22 (Olup)), Respondent and/or her associate did not comply with Minn. Rule of Civil Procedure Respondent did not contact Ms. Elliott to find out her position on the Test.) 29. No motion for attorney fees was pending at the time ofthe issuance of the subpoenas but fees are usually an issue in a dissolution trial. (D. Ex. 7) 30.The hearing of September 6, 2013, was held on an emergency basis since trial was scheduled for September 11-12, 2013. (R. Ex. 104) The Court's Order setting the hearing for September 6, 2013, at 8:30 aim. was received by Respondent?s office (via facsimile) on September 5, 2013, at 2:01 pm. (R. Ex. 104~Order filed September 5, 2013) 31 .At the September 6, 2013, hearing, Ms. Elliott stated on the record that Respondent had Ms. Elliott served at her residential address with a notice of Respondent?s intention to have Ms. Elliott be held personally responsible for Ms. Grazzini-Rucki's fees. (D. Ex. 7, p. 17) Ms. Elliott testi?ed at the instant hearing that she would not have stipulated to the attorney billings. (Elliott Test.) 32.As noted in the September 6, 2013, transcript (D. Ex. 7), there are a number of ways in dissolution actions to provide fee information to a court without prior counsel testifying under subpoena. This includes having the client, Ms. Grazzini-Rucki, testify regarding the amounts. (D. Ex. 7) 33. Respondent was twenty minutes late for the hearing. (D. Ex. 7, p. 5) Respondent interrupted the Court several times(four times), 31) Judge Knutson asked a bailiff to step towards the Respondent to maintain order in the court. (D. Ex. 7, pp. 30?31) Judge Knutson told Respondent she was being disruptive. Respondent replied "The rules are that an attorney can't talk in court?" (D. Ex. 7, p. 31) 34.Judge Knutson issued an Order on September 9, 2013, quashing the subpoenas. in his Order, Judge Knutson found Respondent failed to take reasonable steps to avoid imposing an ?undue burden" on the recipients of the subpoenas as required under Minn.R.Civ.P. (Knutson Test; D. Ex. 8, para. 1) Judge Knutson ordered Respondent (or her law firm) to personally pay monetary sanctions as a result. The measure of the sanctions would be the cost for the attorneys? time and expense invotved in making a motion to quash the subpoenas. (D. Ex. 8, para. 5) Judge Knutson allbwed the subpoena recipients ten days to file af?davits reflecting the time and expense incurred. (D. Ex. 8, para. 6) 35.Jennifer Evans, Linda Olup and Gary K. Luloff, on behalf of Elizabeth Henry, provided affidavits of the time and expenses. (D. Ex. 8, Attachments B, C, and D) On September 25, 2013, Judge Knutson entered an order establishing sanctions in the total amount of $6,202.50. (D. Ex. 18) 36. Respondent appealed the September 9, 2013 and September 25, 2013, Orders to the Minnesota Court of Appeals. The sanction award was affirmed on January 12, 2015. (D. Ex. 47) The Court of Appeals opinion stated, in part, that Judge Knutson ordered a ?modest sanction against appellants Respondent and her law firm and showed restraint by awarding only fees actually incurred by the attorneys in moving to quash the subpoenas.? (D. Ex. 47, p. 37. ReSpondent petitioned for review to the Minnesota Supreme Court. (D. Ex. 110) The Petition was denied on March 25, 2015. (D. Ex. 1) 38.0n December 26, 2013, Respondent sent letters to Lulotf, on behalf of Henry, (D. Ex. 23), 0 th (D. Ex. 24), and Evans (D. Ex. 25) and made offers of compromise. Copies of the letters were sent to the Lawyers Board of Professional ResponsibilityEx. 25, p.2) Grazzini~Rucki Trial-September 11, 2013 39.0n September 11, 2013, the first scheduled day of trial in the Grazzini-Rucki dissolution proceeding, Respondent, on behalf of Ms. Grazzini?Rucki, ?led a civil rights lawsuit in Minnesota U.S. District Court against Judge Knutson, personally and not in his position as a Minnesota District Court Judge, alleging violations of the law. (D. Ex. 9) Findings regarding the federal lawsuit will be outlined below. 40.After hearing in limine motions in the dissolution case, Respondent moved Judge Knutson to recuse himself from hearing the Grazzini?Rucki case due to the filing of the federal lawsuit and its demand for compensatory damages in the amount of $330,499.861.32. (D. Ex. 10, pp. 22-25; Knutson Test; R. Test.) 41.Judge Knutson denied Respondent's motion believing the Code ofJudicial Conduct required him to put aside his own personal concerns and interests. He believed he could be impartial and decide the Grazzini-Rucki matter on its merits. (Knutson Test.) 42. After denying Respondent?s motion for recusal, Respondent questioned the impartiality of Judge Knutson. Respondent stated, ?And you are telling me that you can be impartial in this triat which you haven?t done since day one.? [sic] (D. Ex. 10, p. 24, lines 1?3) 43.Respondent?s statement regarding Judge Knutson?s lack of impartiality ?since day one" was false and made in reckless disregard of the truth. 44.After Judge Knutson asked Respondent to call her first witness, Respondent stated, "Your Honor, I?m not going to proceed. I do not think this is at all fair.? (D. Ex. 10, p. 24, tines 22-23) 45. In the instant disciplinary hearing, Respondent did not provide any evidence of bias on the part of Judge Knutson other than her disagreement with his prior orders. (R. Test.) 46. n expectation Judge Knutson would recuse himself on the morning of September 11, 2013, Respondent admitted she was not prepared to proceed with the scheduled trial. (D. Ex. 10, p. 23, lines 18-19) Judge Knutson testified he did not believe Respondent was ready for trial. (Knutson Test.) 47.Respondent called Ms. Grazzini-Rucki as her only witness. (D. Ex. 10, Direct Examination, pp. 26-68; Redirect Examination, pp. 105-115) 48.At one point during the testimony, Respondent called the proceeding a ?pretend trial?. (D. Ex. 10, p. 116, line 24) At another time, she interrupted Ms. Elliott's cross-examination of Ms. Grazzini?Rucki. (D. Ex. 10, p. 91) Respondent argued with opposing counsel (Elliott) during the testimony. (D. Ex. 10, pp. 111; pp. 220-223) 49.At the end of the first day of trial, Judge Knutson directed the case would continue the next day, September 12, 2013, at 9 am. (R. Test.; Knutson Test; D. Ex. 10, p. 250, lines 34) Grazzini-Rucki Trial-September12, 2013 50.0n September 12, 2013, Judge Knutson took the bench at 9:01 am. and waited for all parties to arrive. (D. Ex. 14) Respondent approached Judge Knutson's court reporter, demanded a transcript from the preceding day and accused the court reporter of not recording the prior day's testimony accurately. (Knutson Test.; D. Ex. 11) Since the bailiff and some ofthe parties and/or counsel were not present, Judge Knutson left the bench at 9:14 am. (Knutson Test; D. Ex. 14; D. Ex.11, p. 3) 51 .After Judge Knutson left the courtroom, Respondent off?the-record made, in summary, statements that if the court reporter was not going to record everything that happened in the courtroom, Respondent would do so. (Elliott Test; D. Ex. 32, p. 22) Respondent began taking pictures of people in the courtroom (including a deputy) and the clock. (D. Ex. 14, Time: 9:15:25; Elliott Test.) No one gave Respondent permission to take their picture. (R. Test.) . 52. Deputies assigned to the courtroom approached Respondent and informed her she knew she wasn?t allowed to take pictures. (D. Ex. 14; Elliott Teststandard procedure for courtroom deputies to advise court attendees that no recording devices of any type are allowed in the courtroom. (Elliott Test.) At the instant hearing, Respondent denied she was ever told to not take pictures. (R. Test.) I 53.The Grazzini-Rucki case was the subject of social media coverage and ptcketing at the Dakota County Courthouse. As a result, heightened security was in place for hearings. A number of Ms. Grazzini-Ruckt?s supporters (including Dee Dee Evavold) were present in the courtroom during the trial. (Elliott Test; D. Ex. 14) 54. A courtroom deputy took Respondent?s'camera. Respondent planned to use her cell phone for photographs. (D. Ex. 32, p. 24) Respondent denies she ever told the deputy she would take pictures with her cell phone. (R. Test.) The deputy then took Respondent's cell phone. (D. Ex. 14; D. Ex. 32, pp. 24- 25) Respondent was upset but Ms. Grazzini-Rucki was able to settle her down. (Elliott Test.) 55.Judge Knutson had not retaken the bench. (D. Ex. 14) Courtroom deputies talked to Judge Knutson in a hallway outside of the courtroom and advised him that they had observed Respondent take pictures within the courtroom. (D. Ex. 14, Time: approx? 9:18-19; D. Ex. 32, pp. 25-26) 56.Minnesota Rule of General Practice 4.01 (first paragraph) states: Except as set forth in this rule, no pictures or voice recordings, except the recording made as the official court record, shall be taken in any courtroom, area of a courthouse where courtrooms are located, or other area designated by order of the chief judge made available in the office of the court administrator in the county, during a trial or hearing of any case or special proceeding incident to a trial or hearing, or in connection with any grand jury proceeding. 57.The Honorable Wiltiam Macklin, then chtefjudge ofthe First District, issued an Order in 2005 which states in relevant part: No pictures or voice recording, except the recording made as the official court record, shall be taken in any courtroom or area of the Judicial Center where courtrooms are located. Upon the request and at the direction of the presiding judge by written order, this Order may be modified with respect to speci?c matters pending before the presiding judge. (D. Ex. 50, para. 1, 4) 58.When Judge Knutson returned to the courtroom, he stated on the record what the deputies advised had happened during the recess. He then told Respondent that, as an attorney, she knew there was ?no recording or picture taking or videoing of any court proceedings in the courtroom.? (Knut. Test; D. Ex. 11, p. 4) 59.At the time, Respondent did not state, as she did at the instant disciplinary hearing, that she was free to take pictures during a recess when a judge is not on the bench since she did not consider it was ?during" a trial or hearing. (R. Test; D. Ex 11) 60. Respondent's purpose in taking pictures was to gather evidence in support of her federal lawsuit against Judge Knutson. (R. Test.) 61 .The trial proceeded after Judge Knutson made a record of what had occurred during the recess. A morning recess was taken when Respondent needed a 2011 calendar to cross-examine Laura Miles, the guardian ad litem. (D. Ex. 14, Time: 10:26:10) Deputies approached Respondent and advised her she would be issued a citation for contempt of court based on her actions of taking pictures within the courtroom and asked her to accompany them so they could fill out the citation. (D. EX. 32, p. 28) 62. Respondent left the courtroom with the deputies. (Elliott Test; D. Ex. 14, Time: 10:26:59-10:27:11) Courtroom and court holding area security cameras recorded these events although there is no audio. (D. Ex. 14-46) 63. Immediately upon Respondent?s departure from the courtroom, Ms. Grazzini- Rucki and Dee Dee Evavold began packing up all of Respondent's trial materials in boxes and were out of the courtroom security camera coverage in less than three minutes. (D. Ex. 14, Time: 10:29:30; Elliott Test.) Judge Knutson saw Ms. Grazzini-Rucki with boxes in the parking lot area of the courthouse. (Knutson Test.) Ms. Grazzini-Rucki did not return to the courtroom. (D. Ex. 14) 64.As Ms. Grazzini-Rucki and Ms. Evavold were packing up the trial materials, Ms. Elliott informed them Respondent would be right back and would want her trial materials. (Elliott Test; D. Ex. 14?Ms. Elliott seen talking to Ms.- Grazzini-Rucki) 65. Respondent was taken to the court holding area where the deputies attempted to fill out a citation for contempt of court. (Resp. Test28) The deputies could not complete the citation because Respondent refused to give her legai name, date of birth and addressTest; D. Ex. 32, p. 28-29) When asked her name, Respondent replied, ?You know my name?. (R. Test.) 66. Respondent's legal name is Michelle Lowney MacDonald Shimota. Professionally, she is known as Michelle Lowney MacDonald. (R. Test.) 67.The deputies spent 14-15 minutes (D. Ex. 15, Time: 10:28:57?10:43) requesting the information from Respondent and explaining if she gave it to them, she would be allowed to return to the courtroom. Deputies requested the information multiple times. (D. Ex. 32, p. 30) Respondent refused to give the information to the deputies. (R. Test; D. Ex. 32, pp. 28-29) 68.The requestfor a legal name, date of birth and address is standard procedure for all people being given a citation. (D. Ex. 13) Respondent testified it was ?ludicrous" for the deputies to request the information. (R. Test.) Subsequently, the deputies used the Department of Motor Vehicles website for Respondent?s legal name and used her business address. They still needed her date of birth. (D. Ex. 32, pp. 31-32) 69. Contrary to Respondent?s testimony in the disciplinary proceeding, she was not in custody until she refused to give the deputies her legal name, address and date of birth. She was placed in custody due to her refusal to provide the information. (D. Ex. 32, p. 32) Deputies added a charge of misdemeanor obstruction of justice due to Respondent?s actions. 70. Director?s Exhibit 15 shows Respondent being placed in custody including the removal ofjewelry, glasses and shoes and a pat down search. Respondent was placed in a holding cell with the door open. (D. Ex. 15) 71 .When advised she needed to return to the courtroom, Respondent refused to cooperate with the deputies. She refused to stand or walk and, as a-result, the deputies placed her in a wheelchair. (D. Ex. 15, Time: 10:57-19:58237; Knutson Test; D. Ex. 32) Respondent was handcuffed to a belt. (D. Ex. 15; R. Test.) 72.Director?s Exhibit 15 shows Respondent being offered her glasses. (D. Ex. 15, Time: 10:50) Respondent ignored the offers. Respondent was told she could put on her shoes but would not do so. (D. Ex. 15, Time: 10:48) Respondent?s property (including her glasses) was photographed and placed in an inventory bag (D. Ex. 15) and the inventory bag is seen being held by a courtroom deputy when Respondent was returned to the courtroom. (D. Ex. 14, Time: 11:02) Respondent denied she was offered her glasses when questioned during the disciplinary hearing. (R. Test.) Director?s Exhibit 15 shows Respondent being offered her glasses. (D. Ex. 15) Deputy Gonder advised Judge Knutson of Respondent's lack of cooperation regarding her shoes and glasses. Respondent?s cell phone could be returned to her at a ?moment's notice?. (D. Ex. 11, p. 54, line 8) 73. Respondent did not consider her obligation as an attorney to competently represent her client, her obligation to not engage in conduct intended to disrupt the court or her obligation not to interfere with the administration of justice on September 12, 2013. (R. Test.) 74.Additiona findings regarding the misdemeanor charges will be made below. 75. Upon return to the courtroom, deputies advised Respondent and Judge Knutson, on the record, that Respondent would be released from custody when she provided her legal name, address and date of birth. (D. Ex. 11, pp. 44-45) 76.Judge Knutson asked Respondent how she wished to proceed since her client and trial materials were not present. (D. Ex. 11, pp. 44?45) Respondent was reminded by the Court other obligation to her client. (D. Ex. 11, p. 46; Knutson Test.) Respondent was asked if she needed to contact someone to get her trial materials: (D. Ex. 11, p. 46) Respondent did not verbally reply to Judge Knutson. (D. Ex. 11, pp. 45-46) Respondent was given a number of opportunities to provide the needed information, receive the citation, contact her client and retrieve her file but she did nothing. (D. Ex. 15; Knutson Test; R. Test.) 78. Respondent did not ask for any accommodation during the hearing. (Knutson Test; D. Ex. 11, pp. 44-98; R. Test.) Respondent was told the situation was of her own making and could be remedied but she did nothing. (D. Ex. 11, p. 54?55) Even during the disciplinary hearing, Respondent stated there was "nothing she could do? to correct the situation. (R. Test.) 79.At first, Respondent requed to respond to Judge Knutson's questions or comments. (D. Ex. 11, pp. 45-47, 52) Later, she made objections to the proceedings and to certain testimony. (D. Ex. 11, p. 51, etseq.) Respondent requested the minor children be immediately returned to the custody of Ms. Grazzini?Rucki. (D. Ex. 11, p. 51) 80.The record reflects Respondent?s unwillingness to resolve the contempt of court citation issue disrupted the trial and was aimed at making a record for either an appeal, a mistrial and/or to garner information for Respondent?s federal lawsuit against Judge Knutson. Respondent ?led an Amended 81. Complaint in the federal lawsuit after the events of September 12, 2013. (D. Ex. 20; R. Ex. 115) Respondent's involvement in the rest ofthe trial was minimal. (D. Ex. 11) Respondent briefly cross-examined David Rucki. (D. Ex. 11, pp. 86?87) Respondent made numerous objections to the entire proceeding. (D. Ex. 11) Respondent agrees she did not competently represent her client but testified at the disciplinary hearing that it was due to her illegal arrest and the way the deputies treated her. (R. Test.) 82.At the instant hearing, Respondent blamed Judge Knutson, opposing counsel and the deputies for what happened on September 12, 2013. (R. Test.) 83.Judge Knutson issued Findings of Fact, Conclusions of Law, an Order for Judgment and Judgment and Decree in the Grazzini?Rucki case on November 25, 2013. (D. Ex. 22) Judge Knutson outlined the procedural background otthe case and, more importantly for the disciplinary proceeding, what happened during trial. (D. Ex. 22, pp. 16?21) 84. Respondent appealed not only the November 25, 2013, Judgment and Decree but a number of previous orders (including the sanctions orders regarding the subpoenas) in January 2014. The appeal was dismissed. Respondent did not serve the attorney for the guardian ad litem who was made a party to the action on May 14, 2013. (D. Ex. 44, pp. 1-3) Respondent?s request for reconsideration was denied on May 29, 2014. (D. Ex. 46) 85.Respondent petitioned the Minnesota Supreme Court for review of the Court of Appeals dismissal on June 13, 2014. (R. Ex. 125) The Petition was denied. 88. Respondent filed a Petition for a Writ of Certiorari to the United States Supreme Court on November 1, 2014. (D. Ex. 123) The Petition was denied. 87.Ms. Grazzini-Rucki did not file a complaint against Respondent with the Lawyers Board of Professional Responsibility (R. Test.) nor did she file a lawsuit alleging malpractice against the Respondent. (R. Test.) State v. MacDonald Shimota Contempt of Court Proceeding 88. Respondent was issued a citation for contempt of court and obstruction of justice due to her actions on September 12, 2013. (D. Ex. 13) 89.Judge Wermager of the Dakota County District Court ordered Respondent be released from custody and the citation issued to her without alt of the standard information address, date of birth) on it. Respondent was in custody for about thirty hours. (R. Test.) 90.Respondent demanded a complaint. The only charge in the complaint was criminal contempt of court. I 91 .A hearing took place on November 21, 2013, regarding several issues in the criminal case before Judge Leslie Metzen of the Dakota County District Court. In an order filed January 23, 2014, Judge Metzen found probable cause for the charge of criminal contempt for willful disobedience to the lawful process or other mandate of a court for taking pictures in the courtroom on September 12,2013. (D. Ex. 27) 92.0n January 27, 2014, a hearing was held on Respondent?s motion to suppress Respondent's camera taken by the deputies on the morning of September 12, 2013. (D. Ex. 109) 93.0n February 28, 2014, Judge Metzen issued an order finding the camera was taken by the deputies without a warrant and, therefore, the camera evidence was suppressed. (D. Ex. 39, para. 1) Judge Metzen found that although there was a violation of 6 (Respondent?s arrest), the violation was due to Respondent?s conduct. (D. Ex. 39, para. 2) 94.As a result of the suppression of the camera evidence, the criminal case was dismissed on April 4, 2014. (D. Ex. 124) Grazzini-Rucki v. Knutson Federal Lawsuit 95.As found above, Respondent filed a lawsuit against Judge Knutson personally and not in his position as a Minnesota District Court Judge on September 11, 2013. (Findings 39-40, supra) 96.Judge Knutson received a "color of law? letter and ?violation" notice from Respondent on or about July 23, 2013. (Knutson Test; D. Ex. 20, para. 6, Factual Allegations (hereinafter Factual Alleg.) 108, 132) The letter, in summary, stated Judge Knutson should ?stop what he was doing? in the Grazzini-Rucki proceeding. (R. Test.) Judge Knutson testi?ed he considered this letter a ?nonsensical document". (Knutson Test.) 97. Respondent testified during the instant hearing that she has sent ?color of law? letters to opposing counsel and parties in other proceedings. (R. Test.) 98.Judge Knutson was served with the federal lawsuit on October 21, 2013. (D. Ex. 19) 99.0n November 12, 2013, following completion of the Grazzini~Rucki trial but before entry ofthe Judgment and Decree on November 25, 2013, Respondent signed an Amended Complaint on behalf of Ms. Grazzini?Rucki in Minnesota US. District Court. (D. Ex. 20; Knutson Test.) 100. In the Amended Complaint, Respondent made a number of allegations regarding Judge Knutson. Respondent testified the Amended Complaint?s ?factual allegations" were very serious. (R. Test.) 101. Respondent testified she had the right to file the federal lawsuit based on Ms. Grazzini-Rucki?s allegations and the constitutional safeguards of the First Amendment. (R. Test.; R. Argument filed December 8, 2016) Respondent?s duties as an attorney include making only meritorious claims. Based on Respondent?s personal knowledge and the Minnesota state court records, Respondent knew or should have known many of the ?factual allegations" were false. I 102. Respondent alleged Judge Knutson repeatedly retaliated and acted with malice against Ms. Grazzini-Rucki and Respondent (D. Ex. 20, lntro.Para. 5, Fact Alleg. 104, 182), compromised MNCIS (D. Ex. 20, Factual Alleg. 25, 28, 32, 33, 139, 140), ?usurped? case files in concert with opposing counsel (D. Ex. 20, Factual Alleg. 34, 35, 36, 49, 68, 69, 78, 96, 107, 113, 170), signed documents that Judge Knutson knew were false (D. Ex. 20, Factual Alle-g. 69, 144, 153), and used professionals to gather data Judge Knutson knew was false. (D. Ex. 20, Factual Alleg. 37, 54, 73, 76, 101, 153, 156, 164) 103. In addition, Respondent alleged Judge Knutson had nojurisdiction or legal authorization to enter orders. (D. Ex. 20, Intro. Para. 5, Factual Alleg. 30, 40,147, 166, 169) 104. in the Amended Complaint, other exhibits offered in the disciplinary proceeding and during Respondent?s testimony, Respondent alleged Judge Knutson had entered ?over 3,400? orders in the Grazzini-Rucki case. (D. Ex. 20; R. Test.) 105. Upon review of Director?s Exhibit 1, this referee ?nds 30 orders were entered before January 15, 2013 (the date Respondent ?led her Certificate of Representation) and an additional 64 orders after January 15, 2013. The orders include notices for hearings, orders regarding any child support obligation, orders regarding Ms. Grazzini-Rucki's multiple petitions for in forma pauperis status, etc. It appears Respondent's ?over 3,400" comments may have alluded to individual paragraphs of various orders. (D. Ex. 1) 106. At the instant hearing, Respondent, when asked for the basis of these allegations, said ?the record speaks for itself?. (R. Test.) Respondent did testify to the following Judge Knutson?s assignment of cases associated with the Grazzini?Rucki dissolution case was an ?usurping? of cases; (6) Judge Knutson?s insistence she continue the second day of trial while in a wheelchair was evidence of his retaliation against her for the filing ofthe federal lawsuit; (0) Judge Knutson continuing with the trial despite the disappearance of two children and his decision to quash the subpoenas was evidence he was obstructing evidence of his own wrongdoing; Judge Knutson?s signing of orders allegedly including civil rights violations that he should have noticed was evidence he signed documents he knew were false; and Judge Knutson did not hold evidentiary hearings prior to entering orders and, therefore, he knew the information contained in the orders was false. (R. Test.) 107. No reasonable attorney would conclude these ?facts? were sufficient evidence to make serious allegations questioning the integrity and impartiality ofajudge. 108. U.S. District Court Judge Susan Nelson presided over the federal lawsuit brought by Respondent against Judge Knutson. In a 34?page Order and Memorandum filed May 29, 2014, Judge Nelson dismissed all of the claims with prejudice when presented with a Defense Rule 12(b) Motion to Dismiss. Judge Nelson abstained on the injunctive and declaratory relief and dismissed the rest of the claims on the basis of judicial immunity. (D. Ex. 45) 109. Based on Respondent's submissions, Judge Nelson outlined the state court record and materials (D. Ex. 45, pp. 2-13) and the appellate history of the dissolution'case. (D. Ex. 45, pp. 13-16) Judge Nelson dismissed all of the claims because they were "futile? (D. EX. 45, p. 32) and wrote ?nothing in the record supports these allegations?. (D. Ex. 45, p. 30) Judge Nelson found the complaint was clearly based on Judge Knutson?s ?actions taken in his capacity as a state courtjudge.? (D. Ex. 45, p. 32) 110. The "factual allegations" within the federal lawsuit were, in part, false and made with reckless disregard as to their truth or falsity. 111. Respondent appealed Judge Nelson?s Order to the United States Eighth Circuit Court of Appeals on September 25, 2014. (R. Ex. 116) Judge Nelson?s Orderwas af?rmed on March 31, 2015. (D. Ex. 117, p. of Supreme Court Petition for Writ of Certiorari) Respondent fiied a Petition for Writ of Certiorari with the United States Supreme Court. (D. Ex. 11?) The Petition was denied. (R. Test.) 112. Respondent testified at the disciplinary hearing and made statements throughout the Grazzini-Rucki matter that she was representing her client pro bono. Upon review ofthe documents within District Court File 11-1273. it is noted there is an attorney lien in favor of Respondent in the amount of $193,190.05 and against Ms. Grazzini-Rucki. (D. Ex. 1) D?Costa Case 113. Respondent signed her Certificate of Representation on behalf of Joseph D?Costa on February 17, 2014. (D. Ex. 51) 114. Respondent was Mr. D?Costa?s third attorney on a Petition for Dissolution of Marriage ?led by his then wife in November 2013. (R. Test.) 115. On February 24, 2014, Hennepin County District Court Referee Timothy Mulrooney issued an Order for Trial setting trial for June 16-17, 2014'. (D. Ex. 52) 116. The Order for Trial (scheduling order) included deadlines for the exchange of hard copies of exhibits (D. Ex. 52, para. para. 1), financial disclosures (D. Ex. 52, para. submission of transcripts of audio tapes being offered as exhibits (D. Ex. 52, para. sub-para. 2), and ?ling of proposed ?ndings of fact, conclusions of law, order forjudgrnent and judgment and decree (D. Ex. 52, para. 4). Respondent received a copy ofthe Order for Trial. (R. Test.) 117. Respondent admitted she did not comply with all ofthe Order for Trial although she tried to "substantially comply?. (R. Test.) Reapondent did not provide hard copies of her client?s exhibits on time; some were a day late but most were provided eleven days late. (D. Ex. 58, Findings 168, 177). Respondent did not provide proposed findings of fact as directed stating she ?waived? her client's right to ?le them. (R. Test.) 118. Originally set for two days, the D?Costa trial took all or parts of nine days due, in part, to Respondent and her client?s failure of preparation. (D. Ex. 58, Finding 181) The District Court found, in part, But for the conduct of [D?Costa] and his counsel [Respondent herein] including disorganization, noncompliance with trial scheduling orders, nonresponsive and argumentative and narrative testimony, and poor trial preparation, each side?s trial time would not have exceeded 10 hours and the trial would have taken no more than 4 days.? (D. Ex. 58, Finding 181) 119. Respondent interrupted and argued with Referee Mulrooney a number of times and had to be ordered to stop talking when the court was speaking. (D. Ex. 56, pp. 616-620; D. Ex. 57, pp. 894, 1088?1090) Respondent?s behavior was disruptive and disrespectful to the Court. (D. Ex. 56, pp. 616-620; D. Ex. 57, p. 1089?90) 120. The District Court (Judge Patrick Robben) approved Referee Mulrooney?s Findings of Fact, Conclusions of Law and Judgment and Decree and ordered Mr. D?Costa to pay $20,000 in conduct?based attorney's fees. Mr. D?Costa?s former spouse was awarded an additional $20,000 in property to satisfy this order. (D. Ex. 58, Finding 183) 121. Respondent again argued the constitutionality of Minn. Chap. 518, etseq. Referee Mulrooney denied Respondent's motion to find the statute unconstitutional. (D. Ex. 58, Findingh184) 122. Respondent appealed the District Court?s Judgment and Decree to the Minnesota Court of Appeals on April 22, 2015. (D. Ex. 59; R. Test.) The appellate panel called the constitutional challenge ?vague and unclear? (D. Ex. 60. p. 4) and said it was ?saddled with numerous procedural deficiencies.? (D. Ex. 60, p. 3) 123. The Judgment and Decree was affirmed on appeal in part because Respondent failed to preserve arguments on issues at the trial court level. (D. Ex. 60, pp. 9? 10) The Court of Appeals found the opposing party had to defend procedurally barred matters on appeal and $16,000 in attorney?s fees was awarded. (D. Ex. 61) Judgment was entered for the fees'and costs. (D. Ex. 62) 124. Mr. D'Costa?s gross income at the time of the entry of the Judgment and Decree was $3,464. (D. Ex. 58, Child Support Worksheet appended to Judgment and Decree) An award of $16,000 in appellate fees was significant. I 125. At the disciplinary hearing, Respondent blamed Mr. D?Costa, a licensed attorney, for the issues at trial and on appeal. (R. Test.) Respondent knew or should have known she was responsible for what was presented at trial, compliance with court scheduling orders and, if necessary, making a record to be reviewed on appeal. 126. Joseph D?Costa did not sue Respondent for any alleged errors in her representation of him (R. Test.) nor did he file a complaint with the Lawyers Professional Responsibility Board. (R. Test.) Letters to Board of Judicial Standards 127.- On December 26, 2013, Respondent wrote a letter to the Board of Judicial Standards (BJS) reporting what she believed to be unethical conduct by Judge Knutson. (R. Ex. 1114) She wrote additional letters to the same office on February 7, 2014 (D. Ex. 36), March 11, 2014 (D. EX. 40) and April 2, 2014 (R. Ex. 114) 128. Judge Knutson is a member ofthe Minnesota Board ofJudicial Standards. (Knutson Test.) In her letters of December 26, 2013 and February 7, 2014, Reapondent asked for Judge Knutson?s removal from the Board. (R. Ex. 114; D. Ex. 36) On January 28, 2014, Thomas Vasaly, the director of BJS, responded and stated Judge Knutson could not be removed from the Board since he was appointed by the Governor. (R. Ex. 114) 129. In his testimony, Judge Knutson summarized the process for complaints with the BJS. Upon receipt of a complaint, the staffdetermines whether investigation is required or it the complaint should go to the Board. The question for the Board is whether there is reasonable cause to proceed. If there is reasonable cause, the judge is then notified of the complaint and asked to respond. (Knutson Test.) lfa complaint is about a member of the Board, the named judge is not part ofthe process. (Knutson Test.) Judge Knutson was unaware of Respondent?s complaints to the BJS until the current proceeding. (R. Test.) Since Judge Knutson was unaware of Respondent?s complaints to the BJS, it is reasonable to believe the Board determined no investigation was required based on Respondent?s letters and attachments. 130. Respondent believes her complaint to the BJS was the reason Judge Knutson sent a letter to the Lawyers Board of Professional Responsibility regarding Respondent. I (R. Test.) 131. The letters to the BJS include the same complaints made within the federai lawsuit outlined above. Respondent sent copies of all of her letters to. the BJS to numerous elected officials. (R. Ex. 114) 132. As with the federal lawsuit, Respondent?s statements were false and made with a reckless disregard as to their truth or falsity. Mitigation and Aqgravation 133. Respondent offered testimony regarding her pro bono work, her work as a referee in Hennepin County and her minimal prior disciplinary history as mitigation of her misconduct. (R. Test; R. Ex. t20) 134. Respondent maintains she did nothing wrong and, during the disciplinary hearing, blamed others including Judge Knutson, Ms. Elliott, and Joseph D?Costa. (R. Test.) This is an aggravating factor. 135. Respondent does not acknowledge her misconduct. Respondent testified she was ?sorry for whatever i did". (R. Test.) This reflects Respondent?s lack of insight into how her acts affected others. This is an aggravating factor. 136. Respondent characterized the Petition for Disciplinary Action as an attack on her right to be critical of the court system and her attempts to challenge I the constitutionality ofthe family law statute. (R. Test.) She testi?ed the Petition for Disciplinary Action was in retaliation for her running for a position on the Minnesota Supreme Court. (R. Test.) This is neither a mitigating nor aggravating factor. 137. Respondent's continual inability to acknowledge facts found by the courts is an aggravating factor. 138. Respondent has a record of practicing family law. She has been an attorney for almost thirty years. (D. Ex. 120) This is an aggravating factor. 139. Respondent has one prior discipline, a private admonition, for a rule violation unrelated to the misconduct alleged in this case. This is neither a mitigating nor aggravating factor. Based upon the above Findings of Fact, the Referee makes the following: 1. CONCLUSIONS OF LAW The Director has proven by clear and convincing evidence that Respondent failed to properly prepare for the first day of trial in the Grazzini-Rucki proceeding, failed to competently represent Ms. Grazzini?Rucki during the second day of trial by not asking for accommodation to get her client and tile back in the courtroom and failed to perfect Ms. Grazzini?Rucki?s appeal. Respondent vioiated Rule 1.1 of the Minnesota Rules of Professional Conduct (MRPC). The Director has proven by clear and convincing evidence that Respondent?s conduct in pursuing subpoenas against her client?s former counsel violated Rule 3.1 Rule 3.4(c) Rule 4.4(a) (MRPC) and 8.4(d) (MRPC) The Director has proven by clear and convincing evidence that Respondent's conduct in pursuing. false claims against Judge Knutson violated Rule 3.1 (MRPC) and Rule 8.4(d) (MRPC). The Director has proven by clear and convincing evidence that Respondent?s conduct in taking pictures in violation of Court rule and District Court Order violated Rule 3.4(c) (MRPC) and Rule 8.4(d) (MRPC). The Director has proven by clear and convincing evidence that Respondent's conduct in repeatedly interrupting the court, being arrested and being detained during the Grazzini-Rucki trial violated Rule (MRPC). 6. The Director has proven by clear and convincing evidence that Respondent?s false statements made with reckless disregard for the truth or falsity of those statements about Judge Knutson?s impartiality and integrity in multiple forums violated Rule 8.2(a) (MRP0) and Rule 8.4(d) (MRPC). 7. The Director has proven by clear and convincing evidence that Respondent?s conduct in knowingly failing to follow the D?Costa Order for Trial regarding the disclosure of exhibits and proposed findings violated Rule 3.4(c) (MRPC) and Rule 8.4(d) (MRPC). 8. The Director has proven by clear and convincing evidence that Respondent?s conduct in interrupting the Court on multiple occasions during the D'Costa trial violated Rule 3.5(h) (MRPC). 9. The attached Memorandum is incorporated herein by reference. Based upon the above Findings of Fact and Conclusions of Law, and after consideration of the mitigating and aggravating factors, the undersigned recommends Respondent be suspended from the practice of law for a minimum of sixty (60) days followed by two years of probation. Dated this 315' day of December, 2016. Isl Heather L. Sweetland . Heather L. Sweetland i i i MEMORANDUM i The issues before this referee during the disciplinary hearing can be broadly grouped into three parts: statements and actions by Respondent towards Judge Knutson during and after the Grazzini-Rucki proceeding and Referee Mulrooney during the D'Costa matter; Respondent?s alleged incompetence regarding the issuance of subpoenas and appeals; arid actions taken by Respondent to disrupt court proceedings. I False Statements and Conduct Respondent argues any statements she made are protected by the First Amendment?s right to free speech. Respondent relies, in part, on State Board of Examiners in Law v. Hart. its NW. 212, 104 Minn. as (1908) in support of her argument. Her reliance is misplaced. in ?ag, the statements made in a letter to the Chief-Justice of the Minnesota Supreme Court and the Governor concerned cases that had been completed through the appellate process. As cited in Hart, an attorney publishing false charges against a judge "to influence his action or discredit his proceedings in a matter still undetermined? [citing In re Collins, 14? Cal. 8, 81 Pac. 220] can be disciplined. in another cited case [Ex parte Cole, 1 McCreary 405, Fed. Cas. No. 2,973], an attorney urged publication within a nefwspaper of disparaging comments about a?judge in some matter that was'still pending; The court found it was done with "intent to intimidate the judge in a pending matter.? ([?1th supra, at 113) The Minnesota Supreme Court has addressed the issue of whether the First Amendment offers protection to attorneys who bring serious charges against judges and legal officials impugning their integrity. In Disciplinary Action Against Graham, 453 313 (Minn. 2000), the Minnesota Supreme Court addressed the issue. While Hart protected attorneys when those rights were exercised to criticize rulings of the court once iitigafion was complete or to criticize judicial-conduct or even integrity, the protection has not been absolute and an attorney's abuse of that right makes the attorney subject to discipline. (in re Williams, 414 394, 396 (Minn. 1987)) The Minnesota Supreme Court has found Rule 8.2 consistent with the constitutional limits placed on defamation actions by the United States Supreme Court including New York Times v. Sullivan, 376 US. 254 (1964) cited by Respondent. As noted in Graham, ?Because of the interest in protecting the public, the administration of justice and the profession, a purely subjective standard is inappropriate. The standard applied must reflect that level of competence, of sense of responsibility to the legal system, of understanding of the legal rights and of legal procedures to be used only for legitimate purposes and not to harass or intimidate others, that is essential to the character of an attorney practicing in Minnesota. Thus, we hold that the standard must be an objective one dependent on what the reasonable attorney, considered in light ofall his professional functions, would do in the same or similar circumstances.? (Graham, supra, at 322) Impugning the integrity ofjudges and public legal officers by stating as certainties that which was based on nonexistent evidence or mere supposition is conduct that reflects a reckless disregard for the truth or falsity of the statements made in violation of Rule at 324) In the present case, Respondent made statements and impugned the integrity of Judge Knutson while the Grazzini-Rucki matter was pending. This included statements made directly to Judge Knutson in court on September 11 and 12, 2013, and ?factual allegations? in the federal lawsuit?s Amended Complaint. The first two letters to the Board of Judicial Standards. although sent after the entry of the Grazzini~Rucki Judgment and Decree, were sent before the time of appeal had expired. In re Petition for Discipline Action Against Lvnne A. Toroerson, 870 602 (Minn, 2015) confirms the standard forjudging statements as false. The standard is an objective one under the rule of professional conduct prohibiting a lawyer from making a statement that the lawyer knows to be false with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. (Rules of Professional Conduct, Rule Respondent knew her comments regarding entry of the September 7, 2012, Order were false with certainty after the April 19, 2013, Order was entered. Respondent would have been aware of Ms. Grazzini?Rucki?s counsel?s involvement in the telephone conference and the drafting of the order. Respondent's on-going statements and "factual allegations? within the federal lawsuit?s Amended Complaint were false and in reckless disregard of their truth or falsity. The filing of the lawsuit appears to be the same as the case of Petition for Disciplinary Action Against Nathan, 671 578 (Minn. 2003). ?Merely cloaking an assertion of fact as an opinion does not give that assertion constitutional protection." (?le?than, at 584, citing In re Westfall. 808 829, 832-33 (Mo. 1991)) The Supreme Court in Torgerson confirmed that an attorney's disrespectful comments to a judge can be subject to discipline. As in Torgerson. Respondent interrupted Judge Knutson and Referee Mulrooney multiple times as outlined in the findings. Neither Judge Knutson nor Referee Mulrooney imposed sanctions against Respondent for her disruptive behavior. However, there is no question Respondent acted unprofessionally and in violation of MinnR. of Prof. Conduct This says nothing of Respondent?s conduct the morning ofSeptember 12, 2013, when she was arrested because she wouldn?t give her legal name, date of birth and address to the deputies who were attempting to give her a citation. Her lack of cooperation with the deputies (shoes, giasses, walking) was disruptive to the tribunal at the very least. Respondent's client left the courtroom with all of Respondent's trial materials and did not return. Other than Respondent?s testimony that a bailiff told Ms. Grazzini-Rucki to leave, no other evidence was provided at the disciplinary hearing to support Respondent?s statement. Respondent provided no credible evidence to mitigate her conduct during the Grazzini?Rucki proceeding or, for that matter, the D?Costa trial. Lack of Competence A second general area of issues concerned the service of subpoenas, Respondent?s inability to perfect Ms. Grazzini?Rucki?s appeal of the November 25, 2013, Judgment and Decree and the lack of a proper record for review of the D?Costa issues on appeal. While Respondent has been found to be in violation of the Rules of Professional Conduct, the recommended discipline did not take these violations into account. Respondent was sanctioned for the issuance of subpoenas and paid them. Neither client sued Respondent for malpractice. In addition, neither client reported Respondent to the Board of Professional Responsibility. Contrary to ReSpondent?s counsel?s argument, findings of fact in a family court proceeding can be reviewed on appeal if counsel files an appropriate post?trial motion. Disruption of Proceedings it appears from review of the Register of Actions in the Grazzini-Rucki matter (D. Ex. 1) that one of Respondents purposes was to disrupt the proceedings. Many of those actions are noted in the Findings, supra. Respondent had an absolute right to bring the constitutional challenge to Minn. Stat. 518, et.seq., but she based it on the September 7, 2012, Order that she knew or should have known was entered after a telephone conference on the record with Ms. Grazzini?Rucki?s attorney?s involvement. From the records provided and the testimony at the hearing, Respondent also sent a ?coior of law" letter to Judge Knutson. This hearing referee believes it was done with the intent to intimidate the judge. Of concern to this referee was Respondent?s testimony that she has sent "color of law" letters to opposing litigants and attorneys in the past. Respondent followed up with the federal lawsuit which was filed the first day of the Grazzini-Rucki trial. U.S. District Court Judge Nelson found the atlegations to be baseless and ?futile?. The Eighth Circuit agreed. Respondent?s commencement of a federal lawsuit against Judge Knutson personally and not in his position as a Minnesota District Court Judge can only be construed as an attempt to intimidate the judge and force his removal from the case and, possibly, the bench. reasonable attorney under these circumstances would not have made such serious, unsubstantiated allegations against a judge?. (Torgerson, at 610, citing In re Graham, 453 313, 322 (Minn. 1990) As noted earlier, "lrnpugning the integrity of judges and public legal officers by stating as certainties that which was based on nonexistent evidence or mere supposition is conduct that reflects a reckless disregard for the truth or falsity of statements made.? (graham, ld.; emphasis added in Torgerson) Counsel for Respondent argues Respondent had the good faith right to rely on her client's statements. (Respondent?s Argument, p.15) When attorneys have information disputing what their client is saying, the attorney must rely on the record and make proper factual allegations and arguments. The allegations in the Amended Complaint were not true and Respondent would know they weren't true from the written orders filed in Ms. Grazzini?Rucki?s case. Respondent?s letter to opposing counsel that Respondent intended to have Ms. Elliott be personally responsible for Ms. Grazzini~Rucki's attorneys? fees was done with the intent to intimidate counsel. Even Respondent?s arrest during the trial appears to have been orchestrated so the trial would not continue. While Respondent suggested Judge Knutson or Ms. Elliott could have remedied the situation, in fact, Respondent could have given the deputies the required information, received the citation and continued with the trial. Ms. Grazzini-Rucki?s immediate departure from the courtroom with all of Respondent?s trial materials, her not returning to the courtroom and Respondent?s failure to ask for accommodation appears to have been orchestrated to the trial. ReSpondent began taking pictures in the courtroom when there was a standing order against such behavior. When advised she was not allowed to take pictures, Respondent told deputies that she would use her cell phone. These actions were taken with the intent to disrupt the court proceedings. Conclusion The recommendation based on Respondent's violations of the Rules of Professional conduct is minimal under the circumstances. If probation isimposed by the Supreme Court, the referee recommends Respondent be required to obtain a mental health evaluation and follow through with the recommendations, ifany, as one of the probationary terms. W?mmawm THE SUPREME COURT OF THE STATE OF NEVADA i I i? 1 5733 .- FEB 2 7 201? EIISLJEOT i3: ge?g?c?i? RT ev ?mm In the Matter of DEPUTY cuseK . CONRAD HAFEN, Case No. Former Justice of the Peace, City of Las Vegas, 7 63 County of Clark, State of Nevada, - Respondent. CERTIFIED COPY OF STIPULATION AND ORDER OF CONSENT TO PUBLIC CENSURE AND AGREENIENT NOT TO SERVE IN A JUDICIAL POSITION Pursuant to Commission Procedural Rule 29, I hereby certify that the document attached hereto is a true and correct copy of the STIPULATION AND ORDER OF CONSENT TO PUBLIC CENSURE AND AGREEMENT NOT TO SERVE IN A JUDICIAL POSITION filed with the Nevada Commission on Judicial Discipline on February 23, 2017. DATED this 27th day of February, 2017. NEVADA COMMISSION ON JUDICIAL DISCIPLINE P. O. Box 48 Carson City, NV 89702 (775) 687?4017 ,459/ PAUL C. DEYHLEV General Counsel and Executive Director Nevada Bar No. 6954 I three. Comduu [1.02.23 Certified Copy of Stipulation and Order or Consent to Pubti: Censure and Agreement Not to Sen: In a mam {'osition 2:1 I me. I. M2 0154106 Kamteen M. ifnusxiam. Esq. 33113735 Law Of?ce 0! Kathleen M. {1311311211 2? 3205 Skip? 01111 Drive- LEIS :13 NV 89107 (702)321 2222 FEB 2 3 2017 Iacsimil e: (202) 369 572? Prosecuting Of?cer for the Nevada Commission on Judicial Discipline BEFORE THE NEVADA ON 1110113151 131141.11"? .1911? S'I'A'i?li OF NEVADA 111 TI 11-1 MATTER OF CONRAD HAVEN. ,1 CASE 311113 (.1111 (111.111? and {176s Former justice 0111):: Peace. City 0113.?: Vegas- 1 Couniy ni'Cjinrk. Sum: 01' Nevada. 3 1 Respondent. ?1 31113111111011 11111} 011111? 11 0111' 1? 1?0 1?1 1.13411; 1.11 ?1-31 11.1% 1.6.- 1; 1101111) SERVE 1N A 2111111131511.- 111811111151 1 a In order to resolve the three (31 Verified Complaints (1:111:11 11:21:: i. and mu: ., Veri?ed Compiaim dated June 9. 2016 pending against him 11311111: the Nan-1:112 un Judmml [1153011311126 (the 1.011111113311211 and the {2511113 01 the 1-011211111151011 s: 1111:5111-22111111. 1hr: 11131101111631 stipul: 11:33 to the following pursuant to {muniqsion Pmcedumi ?1 3?1: 1. Respondcm admits he committed vioiations 011116 Rex-13:31} Hawk: Cudr nl' .iuciic'xsdl (""Code"1. including Judicial Canon 1. Rule 1.1. requiriny him in with 1111: law; 11111:: 1.2. mandating that he act at all times in a manner pmn?misrs public con?dence in the integrity and 11111131113111?) of 111- avoiding. and the appearance {11' impropriety: 17mm: 3. 1111!: ?13.11?: failing to uphoid the law and in pcri?brm 1111 Limies 01' his judicial 01112:: {111113; mm impzu'iia?y; Rulc 2.61.11}. 1'01? failing to allow every person who has: Ti. 11:11:21 hum?CHE a pmceeding. or that person?s lawyer, the: right in be brand assuming; 11.: 1m?, and 3 8(8) for to be patimt 111 uni?ed and {30111100113 10 2 lawyers, court staff. court of?cials and others he dealt with in his of?cial capacity; by doing a singular act, a combination ofacts. or all ofthe following acts: A. in a preliminary hearing before the Respondent on or about December It, 2014, Clark County Deputy Public Defender Zohra Bakhtary requested a second competency evaluation of the defendant after he had passed an earlier evaluation. The defendant repeatedly interrupted Respondent and both Ms. Bakhtary and the state?s counsel. Respondent gave the defendant 25 days in jail for disruption. When the defendant continued to argue, Respondent gave him another 25 days for contempt. During the Commission's investigative interview regarding this Complaint, the Reapondent admitted he failed to enter the necessai?,r written Order of Contempt against the criminal defendant. 8. in a case which came to trial on or about December 2015, a defendant still insisted on representing himself after the Respondent had given him over four (4) months to obtain counsel. The criminal defendant also argued with Respondent that he wanted a jury trial. A jury is not granted in such a misdemeanor case. The Respondent explained in the investigative interview that he guided the defendant as much as possible during, the trial. without advocating on his behalf. When the defendant asked for another continuance and again began arguing. the Respondent told his bailiff to the defendant and sentenced him to ten (l0) days injail on contempt. Respondent released the defendant from jail the following day. The Respondent admitted to the Commission?s investigator that he also failed to enter a written Order of Contempt in this case. C. On or about April l5. 2016, a woman was brought before the Respondent on a material witness warrant. She did not want to testif) in a Criminal case. Public Defender Bakhtary did not represent the witness, hat was in court at the time and requested to speak as a ?friend of the court?. stating, the witness had representations to make. When Respondent asked the witness if there was anything she would like to say. she started screamingI and yelling at the Respondent and continued to do so until he sentenced her to 25 days in jaill for Ix.) Li.) IND contempt. She was later released and the balance ol? her time on ctmtempt was vacated. During the investigation of this Complaint. the Respondent again admitted he failed to enter a written Order of Contempt based on this incident. On or about May 23. 2016. Public Defender Bakhtarv appeared before the Respondent on behalfof another client who was present and out of custody. Ms. Bakhtary. according to investigative interviews with witnesses who were in court on Ma)- 23rd, repeatedly interrupted Respondent. the Respondent told her to ?be quiet?1 and asked her if she wanted to he found in contempt. She continued to argue for leniency for her client as Respondent issued his ruling. The Respondent ordered his bailiff to handcul?f Ms. Baithtai'y and seat her in a chair located next to the jury box. Respondent then proceeded with his ruling. sentencing the defendant to six (6) months in jail, without the defendant having the assistance of counsel. At the conclusion ol" this hearing, the transcript shows the Respondent told his bailiff to ?tin-cuff Zohra?, stating ?i think she?s leamed a lesson.? During her investigative interview. Ms. Bakhtary stated the Respondent precluded her from advocating for her client, who she knew was l?acingjail time. She also said she was trying to calm the situation and was not arguing with the ReSpondent. in this case, the Respondent did enter a written Order of Contempt of Court= which was vacated on August 2. 2016 by Eighth Judicial District Court judge Gloria Sturman. Although Judge granted Ms. Bakhtary's Petition for Writ of Mandamus in a subsequent Order. Judge Shaman did conclude that Ms. Bakhtary?s conduct. as described in Respondent?s Order. may hate qualified as less than professional or even inappropriate behavior on her part. Respondent abused his judicial authority b) engaging in any or all ol', or any combination ol?. the acts listed above in paragraphs A through (collectively referred to as the "tlets"). Respondent admits to all the allegations brought against him in paragraphs (A) through (E) as set forth above. Respondent agrees to waive the. tiling of the Formal Statement ol' (flanges anti the determination of Reasonable Probability. as provided For in Rule 29._ Respondent .1 [v.2 4 Further agrees to waive his right to present his case. contesting the allegations brought fonvard in the results ofthe Commission?s investigation, in a formal hearing pursuant to Rule l8. Respondent also agrees that this Stipulation and Order 01? Coi?zsent to Public Censure and Agreement Not to Serve in a Judicial Position ("Order?) takes effect immediately pursuant to Rule 29. The Commission accepts Respondent?s waiver of said rights and acknowledges and agrees to the immediate effect of this Order. Resriondent further agrees to appear before the Commission a public proceeding to discuss this Order in more detail and answer any (prestions from the Commissioners related to these cases. 4. Respondent agrees and that this Order will he published on the Commission?s website and liled with the Clerk oi?the Nevada Supreme Court. 5. lieSpondent and the Commission hereby stipulate to Respondent's consent to public censure pursuant to Rule 29 and Respondent?s agreement to not serie in the future in any judicial position in the State of Nevada: pursuant to the Nevada t'l?onstitution, Article 6, "Judicial Department". Section 2i, and 5(a) and (?Section 2 NRS and Rule 28. Respondent stipulates to the following substantive provisions: He agrees the evidence available to the Commission would establish by clear and convincing proof that he violated the Code- including Canon l. Rules and 1.2t and Canon 2. Rules 2.2. 2.6 (A) and He agrees the discipline of public censure and his agreement to not serve in the Future in anyjudicial position in the State of? Nevada is authorized lay Rule 29, Section 21, NR3 1.4653(2) and 1.4677( 1 and Rule 28. (cl l-le stipulates to a public censure for violations ol'tlie Rules as set forth above in paragraph (1) (A) through (E). Respondent had decided not to run again for judicial oi?ce in the State of Nevada it? he lost his bid for re-election. He was not reelected to his jutgcial of?ce. Respondent therefore consents and agrees that he wiil not seek, accept or serve in anyjudicial or adjudicative position or capacity in the Future in any jurisdiction in the State of Nevada. 6. The Respondent understands and agrees that by accepting the terms of this Order. he waives his right to appeal to the Nevada Supreme Court, pursuant to Rule ISD of the Nevada Rules of Appellate Procedure. Lo.) I013 ORDER IT IS HEREBY ORDERED that Respondent is hereby pubiicly censured pursuant to Rule 29 for viciating the Code, Canon 1, Rules and 1.2. and Canon 2. Rules 2.1 2.6 (A) and 2.803). IT [8 FURTHER ORDERED. pursuant to Section 2} and NR8 that the Respondent shall not seek, accept or serve in any judicial or adjudicative position or capmrizy in the future in any jurisdiction in the State of Nevada. 1T 13 FURTHER ORDERED than the Executive Director of the Couunission take the necessary steps to file this document in the appropriate records and on the uebsite the Commission and with the Clerk of the Nevada Supreme Court. famra?d Hafen, Respondent Dated this Ida)! of l-ebruary, '2027 NEVADA ON JUDICIAL DISCIPLINE PO. Box 48, Carson City, Nevada Prosecuting Of?cer Dated thi?f?ay of licbmar) . 20! 7 STATE OF MINNESOTA 3013M COURT 04?96-596 In Re: Complaint Concerning FINDINGS AND The-Honorable LaJune Lange. RECOMMENDATIONS Catharine F. Hankedahl 'Felhaber Larson Fenlon VOgt 4200 First Bank Place 601 Second Ave. S. Minneapolis, MN 55402?4302 (Attorney for Board on Judicial Standazds} Michael MoGlennen 425 8. Third St. Minneapolis, MN 55415 Adjoa A. Aiyetoro National Conference of Black Lawyers 1875 Connecticut Ave N.W., Suite 400 Washington, DC '20009 (Attorneys for Judge LaJune Lange) BACKGROUND . On May 30, 1995, the Honorable LaJune Lange, Judge of the Fourth.Judicial District Court, held a press conference in her courtroom, wearing her judicial robe. She distributed a "Public Statement? printed on official stationery. There is a cancer growing on the judiciary in the State of Minnesota. The two most dreaded evils,? abuse of power and cronyism have invaded the halls of juStice. The institution that the citizens of Minnesota hold in high respect has been rendered impotent by the actions of Justice Keith, Kevin. Burke and Charles Porter to further a personal agenda through abuse of 'power, defamation and cronyism. As a duly elected State Trial Court Judge, the transfer of two judges in violation of the written rotation plan adopted by the District Court Bench. is a feeble 'veiled. attempt to divert the issue.? As a judge who was elected by the people to protect and uphold the rights of all people under the Constitution, I have a responsibility ix: call for EH1 investigation involving the -attempted use of a sealed juvenile court file by U.S. Attorney, David Lillehaug in the matter of United States vs. Qubilah Shabazz. Judge Porter, Judge Burke and Jastice Keith have stood together as abusers of the power entrusted to them by the good citizens of the state of Minnesota. This situation is not a personal feud. This is about abuse of power and cronyism. The pattern is clear and long?standing. Changes made, cover-ups, threats, defamation, and united opposition to anyone who opposes their agenda. Judge Burke and Judge Porter are currently under investigation by the Board of Judicial Standards for conduct relating to the Juvenile Court. They have intimidated, threatened lawyers, public citizens, the media and others who disagree with their methods or personal agenda. I have contacted Attorney General Janet Reno to request an investigation regarding possible prosecutorial ndsconduct in the handling cf the federal prosecution c?f Qubilah. Shabazz prosecution by the U.S. Attorney?s Office. The abuse of power, the cronyism, affects the entire justice system. It cannot be tolerated. I welcome a thorough investigation. - STATEMENT OF THE CASE The Board on Judicial Standards filed a Formal Statedent . of Complaint, charging first that Judge Lange violated Canons 1 and the Minnesota Code of Judicial Conduct, Rules and of the Minnesota Rules of the Board on Judicial Standards and Rule 6.2(a) of the Minnesota Rules of Professional -Conduct because her statement contained "unsupported public charges, made in reckless disregard for the truth," and second that she violated Canons l_and 2A of the Minnesota Code of Judicial Conduct and Rules and 4(a) (6) of the Minnesota Rules of the Board on Judicial Standards l5! "using the judicial office -H- the bench, the courtroom, and official court stationery" to nake her statement. I Minnesota Code of Judicial Conduct: Canon 1. A Judge Should Upheld the ?Integrity and Independence of the Judiciary. an independent and honorable judiciary is indispensable to justice in our society. A 3 10 judge should participate in establishing, maintaining, and enforcing, and should individually observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in Activities. A. A judge should respect and comply with the law and should at all times act in a manner that promotes public Iconfidence 511 the integrity and impartiality of the judiciary. Minnesota Rules o? Board on Judicial Standards, Rule 4: Grounds for Discipline Shall Include: i: i i: (5) Conduct prejudicialtxathe administration of justice that brings the judicial office into disrepute, including, but not limited_to, discrimination against or harassment of persons on the basis of race, color, creed, religion, national origin, sex,' marital status, or age. . (6) Conduct that constitutes a violation of the code of judicial conduct or professional responsibility. Minnesota Rules of Professional Conduct, Rule A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as? to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of. .a candidate for election or' appointment to judicial or legal office. The Minnesota Supreme Court appointed a threeujudge panel, retired Minnesota Supreme Court Justice Lawrence R. Yetka, Minnesota Court of appeals Judge Doris Ohlsen Huspeni, and retired Second Judicial District Court Judge Stephen L. Maxwell, to hear the matter pursuant to Minn. R. Bd. Jud. 4 Standards 10 and to submit findings and recommendations pursuant to Minn. R. Bd. Jud. Standards 11. The panel considered and denied a dispositive motion brought by Judge Lange, attended. a nineeday formal hearing' involving the testimony of 19 witnesses and the presentation of more than 60 exhibits, and conducted.extensive deliberations. The Board's charges were confined to t?ua content and circumstances of Judge Lange?s May 30, 1995, Public Statement. That Public Statement, Judge Lange?s attorneys.confess, is harsh and highly critical of several ranking members of the judiciary. .But the panel?s consideration must go beyond that Public Statement. A.detailed.analysis of the events preceding it leads us to find that, given the highly unusual facts of this case, no violation occurred. PROCEDURAL DATES Feb. 27,11996 Minnesota Board on Judicial Standards serves -Formal Statement of Complaint on Judge Lange. Mar. 19, 1996 Judge Lange makes her Response to Formal Statement of Complaint. mar. 20, 1996 Board files Formal Statement of Complaint and Reaponse. Mar. 29, 1996 Minnesota. Supreme Court appoints a special panel to conduct a formal hearing and submit findings and recommendations. May 30, 1996 Con?erence call hearing June 3, 1996 'Panel 5 order grants motion of Adjoa Aiyetoro to appear pro hac vice and motion of Minnesota Civil Liberties Union to participate as Amicus Curiae by filing a brief, schedules the deposition of Judge Lange, and, amends the schedule. 12 July'lo, 1996 'Hearing on Judge Lange?s dispositive motion. July 11, 1996 Panel?s order denies the dispositive motion. MAug. 5?9, 13?15, 1996 - Formal hearing testimony. Aug. 16, 1996 Closing arguments. FINDINGS OF FACT 1. In January 1995, the Honorable LaJune Lange began to serve in the Fourth Judicial District Juvenile Court and the Honorable Charles Porter became the presiding judge of that Court. The Honorable Kevin Burke was at that time Chief Judge of the Fourth Judicial District; the Honorable.A.M. Keith was and is Chief Justice of the Minnesota Supreme Court. 2. Judge Porter and ?JUdge Lange were friendly colleagues who chose to work together on the juvenile bench because of their mutual interest in the issues of children of color in Minneapolis; Judge Porter also valued Judge Lange?s ability to be a spokesperson and.build.a positive relationship between the court and the community. (II, 213~14)1 9. The juvenile court had converted to the statewide computerized system for tracking cases, known as Trial Court Information System (TCIS), in early November 1994. Judge Lange inherited from her predecessor about 75 cases on which TCIS entries had not been made. IVI, 82L .A second judge assigned to juvenile court at the beginning 1995 also 1Each volume of the formal hearing transcript is separately paginated. References will give the Roman numeral of the volume followed by the Arabic page numbers. 6 13 abusive, profane and personal attacks in his brief comments on the removal petition. Id. (quotation omitted). The public knew that Judge Porter had told Judge Burke it was a choice between him or Judge Lange, that Judge Burke had chosen Judge.Porter, and that Chief Justice Keith had expressed support for Judge Burke. While ?Judge 'Lange labelled these three members of the judiciary as abusers of power and cronies, that labelling was ?moderate, unmalicious, and unabusive,? particularly in light of the holding that Judge Miera?s ?bloodthirsty hypocrites" epithet was not an "abusive, profane and personal" attack. Like the Minnesota Supreme Court in.Miera, we find this -entire affair to be regrettable, and note that Judge Lange could have expressed her views in more reasoned, less inflammatory language, but we do not find that her expression of them denigrated the integrity of the judiciary or brought the judicial :office into disrepute, or that she. made statements concerning the.qualifications or integrity of these judges vdi?l reckless disregard for the truths. The Public Statement reached those already aware of Judge Lange's controversy with Judges Burke and Porter and Chief Justice Keith; her basis for the allegations of abuse of power and cronyism was not unknown. Because we find.no violation occurred, we need not reaCh the issue of whether the Public Statement was protected by the First Ame?dment. See In re .Miera, 426 at 857 {declining'to address a First Amecdment protection claim after 31 14 having found no violation). Nor do we reach the question of -whether Judge Lange?s due process right was violated by the Board?s seieCtive prosecution of her. 3. The use of the courtroom, robe and stationery We also conclude that Judge Lange?s use of the indicia of her judicial office did not bring that office into disrepute or denigrate the integrity and independence of the judiciary. She was not using the office for an improper or non-judicial purpose. She was speaking as a judge in response to a controversy with other judges over various aspects of her performance an; a judge; she was not using Inn: office to advance a?personal or private goal. Her behavior in reading ?the Public Statement and declining to answer questions or engage in debate was not inappropriate to a judge. The Public Statement contains no reference to any individual or entity not properly the concern of a judge acting in that judge?s official capacity. Cases where judges have been disciplined for misuse of the indicia of the judicial office are readily distinguishable from this matter. See, Matter of'Vasser, 382.A.2d 1114, 1117 (N.J. 1978) (judge who used official court stationery in law practice "employ[ed] his judicial o?fice title to further wholly private ends"); In.re.Maidman, 42 A.D.2d.4a. 48 (N.Y. App. Div. 1973) (judge who recessed court to conduct negotiations for a disposition of charges against a friend in his chambers while wearing his robe took part "in a judicial 32 15 act and matter in which his personal interests were involved a: a: We.cannot discern the existence of a specific, well? enunciated rule in either the Minnesota Code c?f Judicial Conduct. or the: Minnesota Rules of the Board on Judicial Standards specifically prohibiting holding press conferences in a courtroom, and ne note that the accepted dress for a judge ill a courtroom is the judicial robe. The Board on Judicial Standards may wish to implement guidelines regarding the proper circumstances under which a judge may speak while robed on.the bench. 'We believe, however, that such.guidelines lmust be prospective. CONCLUSION With hindsight often comes clarity of vision and this case presents an opportunity to attempt to View clearly. It is possible that even as late as the last days_of May 1995, mediation mightlunmabeen.productive. f?maMinnesota legal and judicial systeo has long supported methods of alternative disposition of disputes. Such methods enable all voices to be heard, all positions to be considered. As Clifford Greene convincingly testified at the hearing, a ?tWo track" method.of mediation.is a valuable tool because it permits all grievances to be addressed simultaneouslyu Surely, this matter contained more than one grievance arising within the Fourth Judicial District.l Ideally, mediation would have precluded_the loss of one grievance in the course of pursuing an equally valid one. 33 16 What has occurred in. this case_ is unfcn?sunate; the judiciary is not shown in the best possible light. It is important, however, not to overreact to this matteru There is room for understanding the pressures under which the principals operated; there is an opportunity to acknowledge that benefit may ultimately result from this controversy, and there is hope that the healing process may nos go forward. The case has undoubtedly increased public awareness of the difficulties inherent in administering the state?s largest and busiest judicial district. The pressures and frustrations imposed by the often competing demands of expediency, economy .and technology, the sheer volume of cases, and the need to respond to social change are doubtless unappreciated and perhaps unnoticed by the great majority of those served by the Fourth Judicial District. To the extent that there is now a greater' understanding" of the ?judicial system' and. of the problems confronting it in the Fourth Judicial District, this case has served a public purpose. RECOMMENDATIONS We find that the Board has not presented clear and convincing evidence that Judge Lange violated Canons and 2A of the.Minnesota Code_of Judicial Conduct, Rules and 4(a) (6) of the Minnesota Rules of the Board on Judicial Standards and Rule of the Minnesota Rules of Professional Conduct by the references to United States District Attorney David Lillehaug in her Public Statement. 34 17 We find further that the Board did not present clear and convincing evidence that dudge Lange violated Canons and 2A of the Minnesota Code of Judicial Conduct, Rules and of the iMinnesota Rules of the Board on. Judicial Standards and Rule 8;2(a) of the Minnesota Rules of Professional Conduct by her references to Chief Justice Keith, Judge Burke, dudge Porter, and the Minnesota judiciary in her Public Statement. Finally, we find that the Board did not present clear and convincing evidence that Judge Lange violated Canons 1 and 2A of the Minnesota Code of Judicial Conduct or Rules and 4(a) (6) of the Minnesota Rules of the Board on Judicial Standards by using her courtroom, her robe and her stationery ?for the Public Statement. Inasmuch as we find that the Board has not presented clear' and- convincing' evidence in support of its charges against Judge Lange, we recommend that those charges be dismissed. Dated: _9ctober 16, 1996 BY THE PANEL: W/eWegv? Justice Lawrence pie/WM Judge Doris Ohlsen Huspeni 35 MAXWELL, Judge (dissentingl The majority. writes, detailed. analysis of the events preceding [Judge Lange's Public Statement} leads us to find that, given the .highly unusual 'facts of this case, no violation occurred." I agree with the majority?s view that Judge Lange?s statements pertaining to United States District Attorney David Lillehaug did not constitute a violation because Canons 1 and 2A of the Minnesota Code of Judicial Conduct and Rule of the Minnesota Board on. Judicial Standards pertain exclusively to offenses against the judiciary, and.a United States.Attorney is not a judge, and that those statements do not violatel?innesota Rule of Professional 8.2(a) because Judge Lange said only that she was calling for an.investigation of the United States Attorney; she did not challenge his qualifications or integrityr While I also . agree with the majority?s holding that JUdge Lange's use of her courtroom, robe and stationery did not violate Canons 1 and 2A of the Code-or Judicial Conduct and Rule 4(a)u? of the Board on Judicial Standards, my reason for so lm?ding differs from the majority?s. Judge Lange?s use of the indicia c?f her judicial office to make' her Public Statement was neither wise nor creditable, but it. did. not, in enui of itsel?, discredit the integrity and independence of the judiciary or bring the judicial office into disrepute. fHowever, I _dissent from the, majority?s holding? that the portions of Judge Lange?s Public Statement pertaining to Chie? Justice Keith, Judges Burke and Porter, judiciary 13-1 19 did not constitute a violation. I find that the Board presented full, clear and convincing evidence that in making these portions of her Public Statement, Judge Lange violated Canons 1 and 2A of 'the Minnesota. Code of Judicial Conduct, Rule of the Minnesota Board on Judicial Standards, and Minnesota Rule of Professional Conduct It is undisputed that Judge Lange held a press conference-at which she published her Public Statement; its contents are equally undiSputed. Judge Lange said that Chief Justice Keith, Judge Burke and Judge Porter have rendered the judiciary impotent by furthering "a personal agenda through abuse of power, defamation and cronyism?; she said that the three have a long-standing pattern of "cover-ups, threats, defamation, and united opposition to any who opposes their agenda"; she said dodges Burke and Porter have . intimidated and threatened lawyers, public citizens, the media and others who disagree with their methods or personal agenda.? 3113 referred to a "cancer growing on the judiciary" and said the entire justice system is affected by abuse of power and cronyism. Canon 1 of the Minnesota Code of Judicial Conduct requires a judge to observe "high standards of conduct so that the integrity and independence of the: judiciary may be preserved",- Canon 2A requires a judge to act "in a manner that promotes public confidence in the integrity and impartiality of the judiciary." While Minnesota, has not addressed the issue, other jurisdictions have held that an objective, not-a subjective, standard applies to judicial as well as attorney discipline. See, Doan v, . 20 Commission on Judicial Performance, 902 P. 2d 272, 278 (ca1_-1995) (holding that conduct prejudicial to the administration of justice includes conduct that a judge undertakes in good faith but that would appear prejudicial to public esteem for the judicial office to an objective observer); In re Stuhl, 233 S.E. 2d 562, 568 (N.C. 1977} (holding that whether conduct is prejudicial to the administration.of justice ?depends not so much (n1 the judge?s motives but more on the conduct itself, the results thereof, and ,the impact such conduct might reasonably have on knowledgeable observers"). Therefore, the issue is not what Judge Lange personally believed or whether she acted in good faith; the issue is whether an objective observer would find her Public Statement prejudicial to public esteem for the judicial office, or what impact the Public Statement would reasonably have had on knowledgeable observers. _Public confidence in the integrity of the judiciary'is not and cannot be promoted or preserved by'a judge who asserts to the public that the state?s Chief Justice, the district's Chief Judge, and another judge are abusing their power, indulging in cronyism, and furthering a personal agenda, or that a cancer is growing on the judiciary.. A judge who makes these assertions, whatever her belief or intent, "brings the judicial office into disrepute," conduct explicitly forbidden by Rule of the' Board on Judicial Standards. Minnesota Rule of Professional Conduct 8;2(a) prohibits attorneys from making statements that they know to be false or with DHB 21 reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge- Judge Lange?s statements that Chief Justice Keith, Judge Burke and Judge Porter furthered a personal agenda through abuse of power, defamation and cronyisnidid not merely concern. the qualifications and integrity' of those judges; the statement was critical. An attorney who makes critical statements regarding judges and legal officers with reckless disregard as to their truth or falsity exhibits a lack of judgment that conflicts with his or her position as an officer of, the legal systest and a public citizen.having special responsibility for the quality of.justice. In re Lusciplinary Action Against Graham, 453 322 (Minn. 1990), cert. denied sub nom., Graham v. wernr, 498 820 (1990) (quotation and citation omitted). Graham established that violations of Minnesota Rule of Professional Conduct 8.2(a) are to be determined not by a subjective but by an objective standard. [Wle hold that the Standard [for violation of Rule must be an objective one dependent (Hi what the reasonable attorney, considered in light of all his professional functiOns, would do in the same or similar circumstances. Id. Again, the issue is not what Judge Lange subjectively believed about the truth or falsity of her statements about Chief Justice Keith, Judge Burke and Judge Porter, nor what she intended in making those statements; the issue is what a reasonable attorney would have done in her circumstances. Her circumstances at the time of the Public Statement were these. A month earlier, problems in Jodge Lange?s chambers had 22 caused Judge Porter tolnaextremely concerned; he communicated this concern to Judge Burke. (II, 215?16) Judge Burke and Judge Porter met with Judge Lenge for five to ten nunutes tx) discuss this concern, during which Judge Burke yelled or raised his voice for about five words, and may have shaken his finger. (II, 67; V, 37] Judge Lange then wrote each.member of the Supreme Court complaining of Judge Burke?s treatment of her and accusing another judge and a court administrator of intemperate behavior. (Ex. 9) The Supreme Court invited Judge Lange to a meeting to discuss her concerns; the meeting was held within 48 hours of receipt of her letter. Judge Lange chose to take with her an individual not invited by the Supreme Court, Clifford Greene, her family attorney, who picked her up and drove her to the meeting. (V, 59-60) She wanted Mr. Greene to serve as a third~party neutral in reSolving the dispute- (VI, 57) The Supreme Court accepted.Mr. Greene?s presence at the May 5 meeting as a person Supportive of Judge Lange. (II, 155) The Supreme Court justices, including Chief Justice Keith, listened to Judge Lange with interest and a follow?up meeting was arranged. (V, 64) The follow-up meeting involved Judge Lange, the court administrator criticized in Judge Lange?s letter, another judge with whoclJudge Lange said she could work well, Chief Justice Keith, Judge Burke, and.Judge Porter, who had not previously had an opportunity to express his concerns about Judge Lange. (V, 66) Judge Lange again invited Clifford Greene. (VI, 60?61} He arrived while the May 8 meeting was in progress. (II, 173) Judge Lange said Mr. Greene was not there to represent her as an attorney 23 but for mediation'or conflict resolution. (II, 78) Judge Burke was -uncomfortable with Mr. Greene?s presenCe at a court meeting of only court personnel; Chief Justice Keith asked Mr. Greene to leave. (II, 77, 173) Judge Lange subsequently told Mr. Greene that she would seek.a different attorney who would be able tK) "take on" Chief Justice Keith and also that she would. seek. to arouse community support. (VI, 62964) After Mr. Greene le?t the meeting, Judge Porter explained in detail his concerns with Judge Lange and her staff; 67) When the meeting concluded, Judge Lange and Judge Porter knew they were to meet to continue discussion, but the scope of that discussion was not clear. 17?18; v, 73) Judge Porter prepared a draft of what he thought they should discuss. (Ex. 11) Judge Lange declined to disduss the matter with him. (VI, 65) A copy of Judge Lange?s May 3 letter was received by the Star-Tribune; she, Judge porter and.Judge Burke were intervieued.by a Star?Tribune reporter and quoted in a Star-Tribune article that also quoted a statement made by Chief Justice Keith. (Ex. 19) Judge Lange?s minister, with a group of other ministers, held a press con?erence to announce that they were seeking an investigationf of Judge. Burke's treatment of Judge iLange. An article in the Spokesman/Recorder reported on the press conference - and accused.Judges Burke and Porter of having interceded with Judge Lange to get her to release sealed files; (Ex. 21)? As Judge Lange testified, neither Judge Burke nor Judge Porter ever asked her to . release the files. (VI, 124) Judge Lange's transfer' out of 0?6 24 juvenile ceurt was requested by Judge Porter, who prepared a letter to the Executive Committee giving his reasons for the request. (Ex. 14} Judge Burke transferred Judge Lange out of juvenile court. (Ex. 17) The first issue is whether a reasonable judge or attorney in these circumstances would have believed that Chief Justice Keith and Judges Burke and Porter had in fact rendered the Minnesota judiciary impotent through cronyism and abused the power entrusted to them by the citizens of Minnesota. The second issue is whether a reasonable judge or attorney would have told the public that Chief Justice_ Keith and. Judges Burke and. Porter had in fact rendered the Minnesota judiciarx impotent through cronyism and abused the power entrusted to them by the citizens of Minnesota with no evidence other than their treatment of the speaker. Judge Lange's position is that not only she but any reasonable judge in these circumstances would have believed in the truth of all her statements about Chief Justice Keith and Judges Burke and Porter and wduld have called a press conference and made those statements to the public- When asked by her attorney what reasons she had for saying that the three judges engaged in cronyism, Judge? Lange testified.only about their treatment of herself. (VI, 19?23) Similarly, when her attorney asked.for her reasons for saying that the three judges engaged in abuse of power, Judge Lange testified only about their treatment of herself. (VI, 24?26) A reasonable attorney or judge, given no evidence other than the three judges? treatment of Judge Lange, could not have known it was true that Dr? - 25 these judges had rendered the Minnesota judiciary impotent through cronyism and abused the power entrusted to them by the citizens of Minnesota. Telling the public that they had done so was proceeding in reckless disregard of the truth or falsity of the statement, if not proceeding while knowing the statement was false. In either case, the statement violated Minnesota.Rule of Professional Conduct . The majority argues that the context of Judge Lange?s Public Statement prevents the statement from violating the Chnons and Rules, Citing In re Miera, 426 850, 856 (minn. 1988}: a judge?s public comment "must ?be read. in the, context of this regrettable affair.? The only similarity between the context of dudge Miera?s "bloodthirsty hypocrites? comment and the context of Judge Lange?s Public Statement is that both were made during "regrettable" affairs; otherwise, the contem: of Judge Miera?s remark is completely distinguishable. Unlike Judge Lange, gudge Miera did not call a.press conference to distribute a.prepared 300? word Public Statement; his two-word statement was a spontaneous, albeit vituperative, response to a reporter?s question during a phone call. Id. at 853. Specifically, the majority finds no violation because of Judge Lange?s frame of mind when she made the statement and because of the amount of publicity her situation had received. The Canons and . Rules do not say that violation is contingent on the.offending judge?s frame of mind or_on the absence of previous publicity, and Miera does not support finding no violation for either of these 26 reasons. Judge Miera. was speaking of other judges immediately after learning that they had acted to remove him from the bench by petitioning the supreme court and making statements to the media as soon as a verdict adverse to Miera was released, and that one judge had hosted a victory party for Miera's opponent. Id. at 856?57. Judge Lange spoke :of other judges who were not her colleagues, but her superiors; they had transferred her, notsought her removal from the bench; her statement was issued almost a week after she learned of their act, not? the moment after. Judge Miera's remark was found "understandable [as an] outburst, id. at 857,- its context was the surprise and shock of the moment. Judge Lange?s Public Statement is not understandable as an outburst; it was scripted in advance and delivered at a planned press conference; its context included neither surprise nor shock of the moment. The majority finds that at the May 5 meeting, Clifford Greene, Judge Lange?s family attorney and friend, was welcomed by the Supreme Court (Finding ?16) and concludes that after the May 8 meeting, Judge Lange was humiliated by Mr. Greene?s eviction and apprehensive that alternative dispute resolution would not be attempted. (Conclusion 5) Clifford Greene was allowed to remain at the May 5 meeting involving only Judge Lange; he was asked to leave the May 8 meeting that brought together all parties to the dispute.- This was not inconsistent with?the fact that although Judge Lange regarded him as a neutral who could assist in resolving the dispute, he was clearly not a neutral,- he was a friend and supporter of one party, and as such, not welcomed by other parties, 13?9 27 The majority also regrets that neither mediation nor some other form of alternative dispute resolution was attempted. Apparently none of the parties, including .Judge Lange, was sufficiently serious about alternative dispute resolution to contact any of the several sources that could have provided a qualified neutral. The majority finds that because Judge Lange?s Public statement was made in the context of an already public dispute, there was no violation. .?iera does not support the view that once a controversy involving a judge is made public, any further public comments are exonerated; 511 fact, ixi dictum ii: supports tine opposite View. Judge Miera had been the focus of extensive publicity; however, rather {nun} going to tine media, "[c]orrect procedure [for the ?udges who opposed him] would have been for the judges'to complain to the Board on Judicial Standards Id. at 857. The majority, finding no violation, had no reason to address the First Amendment defense or the Due Process selective prosecution defense. Having found that Judge Lange violated the Canons and Rules, I must also address her defenses. Minnesota law on the relationship between the First Amendment and the rights of public employees generally is derived from Pickering v; Board of Education, 391 U.S. 563, 88 S. Ct. 1731 (1968). Pickering set forth a balancing test between: the interests?of the (public employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. 13-10 23 391 U.S. at 568, 88 8. Ct. at 1734. The threshold question is whether the employee was speaking on a matter of public, as opposed to private, concern. MtIntire v. State, 458 714, 718 (Minn. App. 1990), review denied (Minn. Sept. 28,- 1990), cert. denied, 498 U.S. 1090 (l991), applied Pickering and held that there was no First Amendment violation in discharging an employee whose distribution of a critical memo was clearly contrary to the agency?s interests and consistent only with her personal interests. See also COnnick v. myers, 461 U.S. 138, 103 S. Ct. 1684 (1983) (finding no First Amendment protection for speech. related to internal office policy and an employee?s displeasure-at a transfer); Scott v. Flowers, 910 F. 2d 201, 211 (9th Cir. 1990) (finding First Amendment protection for letter written by a Justice of the Peace criticizing the district attorney?s office and the county court because "[his] criticisms had nothing to do with his own conditions of enployment"); Lewis v. Blackburn, 734 F. 2d 1000, 1010 (4th. Cir. 1984) (Ervin, J. dissenting) (finding no First Amendment protection for complaints motivated by personal effrontery over being asked to do more work), rev?d and dissent adopted, 759 F. 2d 1171, 1172 (en banc 1985), cert. denied, 474 018. 902 (1985). Judge Lange?s Public Statement included the sentence, ?This situation is not a personal feud." However, the context that the majority finds not merely relevant but dispositive shows that her IPublic Statement was a response to personal concerns- See Findings 14, 20, 21, 26, 27, 41, 43, 46, 47; Conclusions 3, 5, 6, 7, 8, 9, {1?11 29 Her own testimony on her reasons for making her Public Statement showed that her concerns were exclusively personal: 51; was the three judges? treatment of'Judge Lange that provided the motive. Like the memo in McIntire, her Public Statement Was consistent with her own interests, not with the interests of the judiciary. Even if Judge Lange?s Public Statement were about a matter of public concern, her interest as an.employee in making it would have to outweigh the interest of the state, as her employer, in promoting the efficiency of the public service it provides through the judiciary: The efficiency of the judiciary demands both a .level of cooperation among all court employees and the confidence oi the public. Testimony indicated that the Public Statement I?ngered and polarized statf and employees and judges" (Ii, 96). A judge telling the public that the judiciary had been rendered impotent by abuse of power and cronyism could only diminish the public?s confidence. Therefore, even if her statement had?been about public concerns, the state?s interest in maintaining cooperation within the judicial system and public confidence in that system outweighs Judge Lange?s interest in making her statement. See Thompson v. City of Minneapolis, 300 763, 767 (Minn. 1980) (applying Pickering and holding that the city?s- interest in ensuring a cordial relationship between. building inspectors and residents outweighed the inspector?s interests in engaging in free and open debate by stating that lack of concern about sanitation and Safety were particular cultural heritage). Minnesota law on the First Amendment rights of attorneys is set forth in Graham, which denied First Amendment protection to an attorney who accused a district court judge and a magistrate of conspiracy in fixing the outcome of a :federal case. Graham distinguished the subjective standard for defamatbma of public figures set out in New York Times Co. v. Sullivan, 376 U.S. 254, 279?80, 84 S. Ct. 710, 7'25'?26 (1964) and held that because an jective ltandard is appropriate to attorney discipline cases, the attorney?s belief in the truth of the accusations did not entitle the accusations to First Amendment protection. .Id. at 321?22. Analogously, Judge Lange?s personal belief that the statements were true does not entitle her 11) First Amendment protection. See craham, 453 at 322-23. Judge Lange also. asserted the defense' of selective prosecution, or discriminatory enforcement of the Canons and Rules. In proving discriminatory enforcement, a defendant bears the_ heavy burden of establishing, at least prima facie, (1) that, while ,others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government?s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e. based. upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right. State v. Russell, 343 36, 37 (Minn. 1984). Judge_Lange cannot establish either prong. The charges against her related to her promulgation of a Public Statement containing harsh and 31 vehement criticism of Minnesota?s Chief Justice, of the Fourth District?s Chief Judge, and of another judge, and of the condition of the Minnesota judiciary, printed on her official stationery, at a press conference she called in her courtroom where she sat on the bench in her robe. Notwithstanding the Board?s regulations on confidentiality, if there had been another instance of a judge calling a press conference in a courtroom to distribute a Public Statement highly critical of other judges or justices, and the Board had not brought charges against that judge, the matter would have been publicly known and guesumably cited by Judge Lange, There was no discriminatory enforcement because there has been no other conduct of the type forming the basis of the charges against Judge Lange.- Even if there had been other judges who had called press conferences and distributed public statements highly critical of the judiciary, and those judges had not been charged, Judge Lange would still need to prove that she was selected for prosecution on the basis of an impermissible consideration, such as race. She testified explicitly that this matter was not a race claim or a gender claim. (VI, 156?57) No other impermissible considerations have been suggested as the basis for the discriminatory enforcement. I The'majority?s finding that Judge Lange?s Public Statement did not violate Canons and 2A of the Code of Judicial Conduct, Rule of the Board on Judicial Standards, and Rule of Pro?essional Conduct and its recommendation that the. 32 charges against Judge Lange be dismissed, ensure that this type of judicial conduct becomes a template for the conduct of judges, Judges will be able to criticize publicly any other judge with whom they disagree, or who they think has behaved less than courteously; judicial candidates will be less restricted in criticizing their opponents; the interest of a disappointed or disgruntled judge in publicly defying the judicial systentwill supersede the interest of the system in protecting and preserving itself. Nor will the erosion stop with judges: they will be ineffective in holding attorneys and litigants to higher standards of civility and respect than they obserse themselves. The b?nnesota judiciary will be rendered impotent as disrespect becomes indifference. Dated: October 16, 1996 4 zA- Wave/j sti?e Stephen L. Maxwell - 33