This map shows the shortage or excess of judges in each county of Minnesota’s Third Judicial District, according to analyses used to determine need. Counties with more than enough judges are green; counties with too few judges are orange or red.
by CHRIS ROGERS
The judges counted the ballots twice to make sure — a tie. At the Rochester Golf & Country Club last week, vigorous debate subsided when the judges of Southeast Minnesota scribbled “yea” or “nay” onto slips of paper. They had to laugh when they heard the result. Chuckles broke the tension.
It was tense because the judges strongly disagreed over a decision that will affect the administration of justice in Southeast Minnesota for years to come, as well as their own work lives. In April, longtime Winona County District Court Judge Jeffrey Thompson will retire. At last week’s meeting, Minnesota Third Judicial District Chief Judge Jodi Williamson was weighing what to do with his seat. On Friday, she made a decision, and asked the Minnesota Supreme Court to move Thompson’s position (seat four) to Rochester’s Olmsted County, cutting the bench in Winona from three judges to two.
This move is in the best interests of the Third Judicial District, Williamson wrote in a letter to Minnesota Supreme Court Chief Justice Lorie Gildea. Olmsted County has fewer judges than it needs, and Winona County has fractionally more than it needs, according to the weighted case load studies used across the state to measure judicial need. Olmsted County’s need is projected to grow substantially over the next decade. “I believe that a more-proper alignment of judicial resources will enhance the district’s ability to meet [its] mission,” Williamson wrote.
Now it is up to the Supreme Court.
How the cut would affect Winona County
“This will slow down justice and directly impact the community,” Winona County District Court Judge Nancy Buytendorp stated in an email last Wednesday. In interviews and emails before Friday’s announcement, local judges, lawyers, and law enforcement leaders said that if Winona County loses a judge, court cases would take longer, jail stays would grow longer, the jail population would increase, and judges would be less able to contribute to criminal justice reform programs.
“We are required to process certain cases within strict timelines, and with only two judges here full-time, it will be next to impossible to follow these timelines,” Buytendorp wrote. Child protection cases are one example. Courts are not supposed to leave children and parents in limbo for too long, and in recent years, Winona County courtrooms have been filled with an increasing number of child neglect and abuse cases. “Justice delayed is justice denied,” Winona County Sheriff Ron Ganrude said.
A backed up court calendar will mean a backed up jail, Ganrude explained. Being stuck in jail longer would not be good for defendants, but Ganrude reminded ordinary taxpayers that longer jail stays would affect them, too. The county is already paying to export inmates to neighboring counties. “If we have, on average, more inmates than we currently have, then we are going to be spending more money,” he stated.
Programs such as drug court might take a hit, too. Buytendorp explained that judicial need calculations do not take into account the time local judges spend on the raft of criminal justice reform programs — including drug court, mental health initiatives, and pre-trial releases — that Winona County has spearheaded to reduce recidivism and theoretically, reduce future case loads. “We would really like to not have the revolving door and not have people coming back,” Ganrude said, but without a third judge, intervention programs would be strained. For several years, Buytendorp and her colleagues have made time for regular check-ins with nonviolent drug offenders going through intensive treatment. It is time-taking, but last year, when his sister celebrated overcoming drug addiction and nearly two years of sobriety in Buytendorp’s courtroom, Jeremy Polus’ voice cracked with emotion: “This is a big deal for me because I get my sister back.”
If the seat moves, Winona County will not be hung out to dry. The Third Judicial District asks counties with more than enough judges to share with neighboring counties in need. Judges call it equalization. To fill in the gaps, the district also calls on senior judges — retired judges who work part-time. Thompson reminded local criminal justice officials: right now, Winona County is sending judges to help Olmsted County; if the seats moves, Olmsted County will start helping Winona County. Williamson reinforced this point, too, and Third Judicial District Administrator Shelley Ellefson stated, “No matter what decision is made on where to chamber this judgeship, Winona County District Court will have enough judges working in the county to manage the court’s caseload in a timely and efficient manner.”
What is best for Southeast Minnesota?
The Dodge County District Court Judge Williamson was elected by her peers to represent the entire Third Judicial District, and she alone was charged with deciding whether to recommend that the Minnesota Supreme Court move seat four to Rochester or fill it where it is, in Winona. At last week’s meeting, she asked her colleagues to cast ballots in a non-binding vote. “This is not an action I take lightly … I have labored over this. I have lost sleep over this. This affects everyone in this room and our hundreds of employees across the district,” Williamson told them.
The argument for moving seat four is simple. In absolute number terms, Olmsted County already has the highest need in the district, and between now and 2030, Olmsted County and the counties immediately west of it are projected to experience the greatest population growth. If Mayo Clinic’s Destination Medical Center (DMC) project lives up to expectations, it will bring tens of thousands of people to Rochester and surrounding communities.
How the judicial district allocates resources is a business decision, Olmsted County District Court Judge Kevin Lund told his colleagues at last week’s meeting. “As painful as it is, [Olmsted County] is where the demand is. That’s where the growth is, whether we like it or not … If you’re looking out into the future, as painful as it is, that’s the best decision, on balance, that the system can make,” he said.
The chief judge should consider how people across Southeast Minnesota are going to see this, Steele County District Court Judge Karen Duncan said at the meeting. “There is a certain voting block that feels like Destination Medical Center is the rich getting richer and everyone else paying for it. And the optics of moving a judge from Winona, where we have a good need and there’s good cooperation and equalization going on, to Olmsted, is going to be perceived by that segment of the population as once again the rich taking from the poor.”
“There is nothing good about Destination Medical Center. Zero,” Lund said, specifying that this was his personal opinion, not the court’s. “It’s a marketing tool for the Mayo Clinic,” he stated. “But bumping up against the Mayo Clinic — you have a better chance of fighting the federal government,” he added. Judges should not be spending their time staring out a windshield while they drive all over the region for equalization, and the district bench should not have to fight over two-tenths of one judge’s time, Lund continued. “It’s why we’re kind of grinding each other up. It’s because the people at the higher levels haven’t done what they need to do relative to getting us the judicial resources we need,” Lund said. Yet, this is the situation Southeast Minnesota is in; now the district needs to deal with it, he stated. “It’s not an us-versus-them,” Lund told Duncan.
Rochester and DMC have statewide political clout, maybe enough to get the state to create a new judgeship for Olmsted County, Judge Christine Long of Rice County hypothesized. If the court takes seat four away from Winona County, she added, “We’re never going to get that judge back in Winona. I don’t think there will ever be the political will to do that.”
It is not acceptable for the district to try to circumvent the proper process for requesting a new judgeship, a judge from Olmsted County responded. The Minnesota Supreme Court makes requests for funding new judgeships to the legislature and the governor based on statewide needs. Currently, the third district is not even on the Supreme Court’s wishlist, Williamson said.
During the meeting and in Williamson’s submittals to the Supreme Court, there was no discussion of a different county giving up a judge to Olmsted County.
Local judges urged: keep seat four
In the case for keeping seat four in Winona County, Wabasha and Houston counties are exhibit A. Lawyers can request a different judge for their case in a process called removal. There are a lot of removals in Houston and Wabasha counties. “We have two one-judge counties around us, and they are in a pickle,” Winona County District Court Judge Mary Leahy said at the meeting. For years, Winona County has sent judges to fill those removals. If seat four moves, where would the judges come from to fill Wabasha and Houston counties’ removals and how long would they have to sit behind a steering wheel to get there? “Winona is 33 miles down four-lane road,” Wabasha County District Court Judge Terrence Walters pointed out. “Every other county seat in the district is much farther and down crappy two-lane roads.”
Buytendorp pressed Williamson on how she would manage the needs of Mississippi River counties if seat four moves. Williamson mentioned two ideas: having one judge split his or her time between Olmsted and Winona counties, or relocating Fillmore County’s only judge and having a more complex reorganization of judges’ time across the district to compensate. Williamson had not decided. In an email this week, Buytendorp said Williamson’s lack of clear answer was concerning.
What would this change fix? “Nothing,” Leahy told her peers. “There is going to be an equalization order shifting people all over kingdom come regardless. We have simply moved the need from one county to another without a fix for our district.”
Exhibit B in the case for keeping seat four in Winona County is Highway 52. According to Buytendorp many of the district’s senior judges come from Twin Cities. For senior judges coming from the metro area to fill in judicial gaps in Southeast Minnesota, Rochester is a closer and more convenient destination than Winona or other corners of Southeast Minnesota.
Olmsted County’s size is actually a reason for keeping seat four in Winona, Winona attorney Kurt Knuesel argued earlier last week. Utilizing equalization time and senior judges often requires a “judge by committee” approach, in which multiple judges — whoever is available — preside over different hearings in a single case, Knuesel explained. That is acceptable for minor cases and some preliminary hearings. “I’ve heard judges refer to them as shoveling-coal-type cases,” Knuesel said. However, in serious cases, such as gross misdemeanors, felonies, and child protection cases, a single judge is supposed to preside over a case, more or less from start to finish. “Imagine if you’re in that situation. [A case is] half-way or three-quarters of the way through, and you don’t know the history and you’re asked to make a decision,” Knuesel explained. Just by virtue of the high number of total cases in Olmsted County, there is more coal shoveling to be done, and that means it is better positioned to make use of equalization time and senior judges, Knuesel explained. “They’ve got six judges they can put on these full-time things, and they’ve got a higher load of these preliminary things … It’s just simple math, they’re going to be able to absorb that better than we are,” he said.
Leahy: reject this proposal
The projected population growth this proposal is based on is not a certainty, and neither is the future of state government support for funding judgeships, Leahy stated in an email last Thursday. “All of this is unknown, and that is why it is unfair to remove a judge based on speculation and conjecture,” she stated. Moving seat four will just move the problem, Leahy continued. “As such, it is a proposal that should be rejected by our district chief and the Minnesota Supreme Court, should it even get to that point in the process,” she wrote.