NEWS MEDIA UPDATE · MINNESOTA · Secret Courts · May 20, 2005
Complaint filed against judge for quotes in newspaper
May 20, 2005 · A longtime Minnesota trial judge has asked the state Board on Judicial Standards to dismiss a formal complaint it filed against him last month for allegedly making an improper public comment on a pending case.
Hennepin County District Judge Kevin S. Burke denied that his comments in a Nov. 23, 2004, Minneapolis Star Tribune article about Julius and Laura Nolen, two local prosecutors charged with felony drug possession, violated the state Code on Judicial Conduct.
The paper quoted Burke, who has presided over cases that both Laura and Julius Nolen have prosecuted, describing their demeanor in the courtroom. Burke is not presiding over the criminal case against the couple.
“He was very professional, very committed,” Burke told the Star Tribune, referring to Assistant Hennepin County Attorney Julius Nolen. “He did some very difficult cases [and was] very sensitive to victims.” As to Nolen’s wife Laura, an assistant Minneapolis city attorney, Burke said he thought “she was very professional, very caring and very committed.”
The Board on Judicial Standards sent Burke a letter Dec. 21, 2004, indicating it had reviewed Burke’s remarks and “considered” four provisions of the Minnesota Code on Judicial Conduct, including the newly adopted Canon 3A(8), which provides that a “judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness.” The other provisions cited, according to the letter, require judges to “preserve the integrity of the judiciary” and to promote public confidence in the integrity and fairness of the judiciary, and prohibit judges from “lend[ing] the prestige of the office to advance the private interest of the judge or others.”
Burke, who was appointed to the bench in 1984 and formerly served as chief judge, responded in writing on Jan. 3 that he was aware of the Code provisions cited but he did “not believe that I even arguably violated any one of them.” He said when Star Tribune reporter Randy Furst called him, Burke told him he “could not comment on the Nolens’ case because it was pending,” specifically referring to the Code’s prohibition against such comment. Burke said he also refused to answer other questions by Furst, “such as what would typically happen to defendants like the Nolens,” or how people at the Hennepin County courthouse reacted to the news of their arrest. He said he limited his answers to the question of the Nolens’ performance as prosecutors in the cases Burke had presided over.
“I do not believe that the answers I gave to Mr. Furst’s specific question could ‘reasonably’ be construed in any way to affect the outcome or impair the fairness of this litigation, or even to be about the case,” Burke wrote.
The board responded on Feb. 1 that it intended to place a private warning letter in Burke’s file because his quoted remarks “could be considered an improper public comment on a pending case.” Burke asked the board to reconsider, which it refused to do.
Attorney William J. Wernz of Dorsey & Whitney, whom Burke hired to represent him, wrote the board on April 12 to again ask it to withdraw the warning to Burke, arguing that there was no reason to believe Burke’s comments would adversely affect the case against the Nolens. Wernz also contended that Burke’s remarks were protected by the First Amendment, and that disciplining him would chill “speech intended to promote the public’s confidence in the judiciary.”
The board issued a formal complaint against Burke April 18, to which Burke responded May 9. Both documents were filed with the Minnesota Supreme Court. A hearing on the matter is expected sometime in August.