Mike Hatch's forgotten scandal (Minnesota)

Mike Hatch is the Minnesota Attorney General and the Democratic candidate for governor running against Republican incumbent Tim Pawlenty. This morning NRO posted my column on the contest between Hatch and Pawlenty: "Code blue in Minnesota." Please check it out. In the column I refer in passing to Hatch's "highly public fight this summer with a state district-court judge whom [Hatch] had sought to remove from a case[.]" The incident involved reflects profoundly on Hatch in the performance of his duties as Attorney General. This post expands on that reference. All facts necessary to render judgment on Hatch's conduct in the matter are of public record. The conclusions I have reached regarding Hatch's conduct are shared by experts in legal ethics with whom I consulted. Persuasive evidence establishes that Hatch has committed serious violations of the rules of professional conduct governing lawyers -- and then lied to cover them up. The violations involve more than mere technical mistakes. The violations are of the sort that properly can lead to an attorney being severely disciplined if not disbarred from the practice of law. On June 12, Hatch telephoned Ramsey County Judge William Leary concerning a case involving the Attorney General’s office, Minnesota v. JBC. Lawyers in Hatch’s office and lawyers for JBC had met with Judge Leary for a settlement conference earlier in the day. Such conferences are common, with the judge working with the parties to see if they might reach an agreement that avoids the need for a trial. Hatch’s lawyers reported to him that the judge had acknowledged the public interest and political considerations that might be relevant to the Attorney General’s office’s ability to accept a settlement in the matter. Hatch apparently took exception to this remark and phoned the judge later in the day. What happened next is disputed by Hatch. But according to Judge Leary’s detailed account, set forth in court records and supported by contemporaneous phone records, Hatch called Judge Leary at about 4:20. Judge Leary took the call and congratulated Hatch on just having received the Democratic nomination for Governor. Hatch said that he was not calling about that. Instead, he expressed his displeasure with the judge’s remarks at the settlement conference and his handling of the case generally. Hatch said that he was thinking of taking his case to the media –- he mentioned a WCCO television news team –- and would suggest that Judge Leary was not supportive of Hatch’s position because the opposing law firm in the case had once lobbied on behalf of a judge’s group. Judge Leary twice attempted to interject, but Hatch continued to talk over him, apparently quite vehemently. (The judge’s description is matter-of-fact and dry in tone, but anyone can read between the lines.) Hatch refused to listen and eventually hung up on the judge. Judge Leary, disturbed by the conversation, immediately reported it to the Chief Judge of the Ramsey County District Court. He was right to do so. Under the Minnesota Rules of Professional Conduct (the rules governing lawyer’s ethics in Minnesota), Rule 3.5 prohibits an attorney from communicating ex parte -– that is, outside the hearing of the other side and outside of the formal record in the case -– with a judge concerning the merits of a case the lawyer has before that judge. The reason for this rule is clear: under our system of justice, each side must be able to hear and refute the arguments of the other side, to avoid unfairness. In addition, ex parte communications provide the opportunity for undue influence, intimidation, and even threats -– all without a court reporter available to record what happened. That is precisely what Judge Leary believed occurred with Hatch, and he correctly regarded it as a serious ethics violation. Since the call turned out not to be a casual conversation, but instead was an attempt to strong-arm him in a case pending in his court, the judge had an obligation to report the conversation publicly and notify the other side. Judge Leary made a memorandum of what had occurred and asked all parties in the case to appear in his court on June 19, the next Monday. He indicated that the reason for the meeting was to disclose the substance of the call from Hatch and give all parties a chance to respond on the record. What happened next is extremely disturbing –- more disturbing than the ex parte phone call from Hatch and even than the allegation that Hatch attempted to intimidate a judge in a pending case. Hatch showed up for the June 19 hearing, but he did not apologize or attempt to explain his actions, as he might have been expected to do. (Sometimes these things are inadvertent, and an apology and disclosure to the other side ends the matter.) Instead, on the morning of the hearing, Hatch filed a motion to disqualify Judge Leary from the case, alleging bias. In short, rather than defending or apologizing for the ex parte phone call, Hatch attacked the judge. Hatch's motion seeking to have disqualify Judge Leary from the case was without merit. Judges may be disqualified for bias where they have ties to one of the parties, but not for comments made during a case or for presiding over settlement discussions. Not surprisingly, the court rejected Hatch’s position. Judge Leary first denied the motion, which was then referred to Ramsey County District Court Chief Judge Gregg Johnson, who also denied it. In a sharply-worded opinion, the Judge Johnson stated that Hatch’s argument "defies logic" and that it would "create havoc within our system of justice if a party was allowed to make disparaging remarks about a trial judge to the press and then demand the judge’s removal from the case based upon tensions created by that party’s own actions." Judge Johnson’s rebuke was based not only on what Hatch did at the June 19 hearing, but what Hatch did thereafter. Hatch had not at first denied that the conversation occurred. But six weeks later, on August 8, he filed a sworn affidavit saying that the conversation had only been one minute long, and attaching his cell phone records to prove it: "At 4:21, p.m. I called (651) 266-8500 and asked to be forwarded to Judge Leary. I talked to Judge Leary. The call lasted one minute." The implication was that no substantive conversation of the sort described by Judge Leary could have occurred in so short a time. And that is what Hatch told the press a week later: "I called thinking the mediation was on. He said it was over, and the call was terminated," Hatch told the Pioneer Press on August 17. And on Minnesota Public Radio the next day, Hatch said: "If you look at the record, the cell phone records shows it’s a one minute conversation. The one minute conversation occurred at 4:21 in the afternoon. I had asked the judge if the mediation was going on. I believe that he indicated that it had been terminated and that was it. It was a one minute call, and that includes calling the clerk’s office, who then had to transfer me to the judge to begin with." In the MPR interview, Hatch also said that the judge had made the allegation of an ex parte contact after Hatch had made the motion to disqualify the judge, and that Judge Leary was probably retaliating against Hatch for making that motion: "I made a motion to remove the judge, and the judge took a shot at me....The judge denied the motion, obviously didn’t like the fact that I was making a motion to remove him, and then he said, well Hatch made an inappropriate call." Hatch’s statements were false. Indeed, they appear to have been calculated falsehoods. For starters, the record shows that Hatch made the motion to disqualify Judge Leary five days after Judge Leary gave notice to the parties of his intention to disclose the phone call on the record. It was Hatch who filed a baseless motion in retaliation for the judge’s action of disclosing the ex parte phone call, not the other way around. The court records show beyond any question that Hatch flatly misrepresented the sequence of events. It is also instructive that Hatch did not offer his justification for the call -– that he thought the settlement discussion might still be going on –- at the June 19 hearing, but rather a month-and-a-half later. One would think that if the call were truly an innocent one-minute phone call made under a mistaken impression, and promptly and cordially terminated, that this would be the first thing Hatch would have said on the record at the court hearing. Instead, it appears to be the last thing that occurred to Hatch, six weeks later. The circumstances strongly suggest that this explanation was contrived after the fact. It is also hard to explain why the judge would have been concerned about the call if it were as Hatch portrayed it, or to understand what possible reason the judge would have had for making up such a story, as Hatch claims. As noted, the suggestion that the judge was retaliating for Hatch’s motion to disqualify him is not consistent with the sequence of events. But the real smoking gun lies in the cell phone records of the calls received by the judge’s chambers, which expose Hatch’s sworn affidavit as false. Hatch had attached his government cell phone records, showing the one-minute call. But the courthouse phone records show that a second call was made to Judge Leary -– from Hatch’s personal cell phone -– at 4:22, immediately after the one-minute call from Hatch’s government cell phone. That second call lasted seven minutes, an amount of time consistent with Judge Leary’s account of the conversation and not consistent with Hatch’s. What appears to have happened was that Hatch obtained the judge’s number from the clerk's office, then hung up and switched to his personal cell phone, from which he made the seven-minute call to the judge. After that seven-minute call, Hatch returned to his government cell phone and called Solicitor General Lori Swanson at the Attorney General’s office at 4:30 -– almost exactly seven minutes later. Hatch’s affidavit states that he had a one-minute call with the judge. Next, it states that he called Swanson. It does not mention the seven-minute call to the judge in between these two. Hatch's public statements that only one call had occurred, that it had been one minute in length (counting the transfer from the clerk’s office), and that it was not of the substance or duration Judge Leary had said were deliberately misleading. It is not a crime to lie to the press, but it is improper under the Minnesota Rules of Professional Conduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation" (Rule 8.4(c)). Another rule flatly states that a lawyer representing "shall not knowingly make a false statement of material fact or law to a third person." (Rule 4.1(a)). Moreover, it is also professional misconduct knowingly to file a false, sworn affidavit. Hatch’s affidavit, made under penalty of perjury, is cagier than his public statements, but still deceitful: "I talked to Judge Leary. The call lasted one minute." This was, at best, a quarter-truth. In context, it appears to have been deliberately false and calculated to mislead. Did the judge do anything wrong? Had he thought of it more quickly, he should have shut the phone conversation down once it became clear that it was an improper ex parte conversation about a case before him. Instead, he contested what Hatch was saying -– a natural response. In any event, Judge Leary’s fault (if any) was only in not reacting more quickly to the situation, when taken by surprise. That in no way justifies Hatch’s conduct. Judge Leary’s account is not at all self-serving; he appears to have had no reason to fabricate his version of events; he moved quickly to put the whole matter on the record; and he certainly could not have invented the phone records showing a seven-minute call from Hatch’s personal cell phone. It is worth pausing to take inventory. Attorney General Hatch first made an improper ex parte phone call to a judge handling a case in which Hatch’s office was involved. The fact that Hatch switched cell phones to make the call tends to show that Hatch was aware of what he was doing and was conscious of its impropriety. Hatch then attempted to threaten Judge Leary. When made aware that the judge would disclose the call, Hatch filed a baseless motion to disqualify the judge. Six weeks later, he denied the substance of the phone call and falsely stated, publicly and in sworn court filings, that the call lasted only one minute. He misrepresented the timing of the disqualification motion to discredit the judge. The chain of events involved here shows an extraordinary pattern of disregard for fundamental rules of professional conduct. Mike Hatch should not be practicing law in the state of Minnesota, let alone serving as its Attorney General, let alone standing on the threshold of its highest office.

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Mike Hatch is the Minnesota Attorney General and the Democratic candidate for governor running against Republican incumbent Tim Pawlenty. This morning NRO posted my column on the contest between Hatch and Pawlenty: "Code blue in Minnesota." Please check it out.

In the column I refer in passing to Hatch's "highly public fight this summer with a state district-court judge whom [Hatch] had sought to remove from a case[.]" The incident involved reflects profoundly on Hatch in the performance of his duties as Attorney General. This post expands on that reference. All facts necessary to render judgment on Hatch's conduct in the matter are of public record. The conclusions I have reached regarding Hatch's conduct are shared by experts in legal ethics with whom I consulted.

Persuasive evidence establishes that Hatch has committed serious violations of the rules of professional conduct governing lawyers -- and then lied to cover them up. The violations involve more than mere technical mistakes. The violations are of the sort that properly can lead to an attorney being severely disciplined if not disbarred from the practice of law.

On June 12, Hatch telephoned Ramsey County Judge William Leary concerning a case involving the Attorney General’s office, Minnesota v. JBC. Lawyers in Hatch’s office and lawyers for JBC had met with Judge Leary for a settlement conference earlier in the day. Such conferences are common, with the judge working with the parties to see if they might reach an agreement that avoids the need for a trial. Hatch’s lawyers reported to him that the judge had acknowledged the public interest and political considerations that might be relevant to the Attorney General’s office’s ability to accept a settlement in the matter. Hatch apparently took exception to this remark and phoned the judge later in the day.

What happened next is disputed by Hatch. But according to Judge Leary’s detailed account, set forth in court records and supported by contemporaneous phone records, Hatch called Judge Leary at about 4:20. Judge Leary took the call and congratulated Hatch on just having received the Democratic nomination for Governor. Hatch said that he was not calling about that. Instead, he expressed his displeasure with the judge’s remarks at the settlement conference and his handling of the case generally. Hatch said that he was thinking of taking his case to the media –- he mentioned a WCCO television news team –- and would suggest that Judge Leary was not supportive of Hatch’s position because the opposing law firm in the case had once lobbied on behalf of a judge’s group. Judge Leary twice attempted to interject, but Hatch continued to talk over him, apparently quite vehemently. (The judge’s description is matter-of-fact and dry in tone, but anyone can read between the lines.) Hatch refused to listen and eventually hung up on the judge.

Judge Leary, disturbed by the conversation, immediately reported it to the Chief Judge of the Ramsey County District Court. He was right to do so. Under the Minnesota Rules of Professional Conduct (the rules governing lawyer’s ethics in Minnesota), Rule 3.5 prohibits an attorney from communicating ex parte -– that is, outside the hearing of the other side and outside of the formal record in the case -– with a judge concerning the merits of a case the lawyer has before that judge. The reason for this rule is clear: under our system of justice, each side must be able to hear and refute the arguments of the other side, to avoid unfairness. In addition, ex parte communications provide the opportunity for undue influence, intimidation, and even threats -– all without a court reporter available to record what happened.

That is precisely what Judge Leary believed occurred with Hatch, and he correctly regarded it as a serious ethics violation. Since the call turned out not to be a casual conversation, but instead was an attempt to strong-arm him in a case pending in his court, the judge had an obligation to report the conversation publicly and notify the other side. Judge Leary made a memorandum of what had occurred and asked all parties in the case to appear in his court on June 19, the next Monday. He indicated that the reason for the meeting was to disclose the substance of the call from Hatch and give all parties a chance to respond on the record.

What happened next is extremely disturbing –- more disturbing than the ex parte phone call from Hatch and even than the allegation that Hatch attempted to intimidate a judge in a pending case. Hatch showed up for the June 19 hearing, but he did not apologize or attempt to explain his actions, as he might have been expected to do. (Sometimes these things are inadvertent, and an apology and disclosure to the other side ends the matter.) Instead, on the morning of the hearing, Hatch filed a motion to disqualify Judge Leary from the case, alleging bias. In short, rather than defending or apologizing for the ex parte phone call, Hatch attacked the judge.

Hatch's motion seeking to have disqualify Judge Leary from the case was without merit. Judges may be disqualified for bias where they have ties to one of the parties, but not for comments made during a case or for presiding over settlement discussions. Not surprisingly, the court rejected Hatch’s position.

Judge Leary first denied the motion, which was then referred to Ramsey County District Court Chief Judge Gregg Johnson, who also denied it. In a sharply-worded opinion, the Judge Johnson stated that Hatch’s argument "defies logic" and that it would "create havoc within our system of justice if a party was allowed to make disparaging remarks about a trial judge to the press and then demand the judge’s removal from the case based upon tensions created by that party’s own actions."

Judge Johnson’s rebuke was based not only on what Hatch did at the June 19 hearing, but what Hatch did thereafter. Hatch had not at first denied that the conversation occurred. But six weeks later, on August 8, he filed a sworn affidavit saying that the conversation had only been one minute long, and attaching his cell phone records to prove it: "At 4:21, p.m. I called (651) 266-8500 and asked to be forwarded to Judge Leary. I talked to Judge Leary. The call lasted one minute." The implication was that no substantive conversation of the sort described by Judge Leary could have occurred in so short a time.

And that is what Hatch told the press a week later: "I called thinking the mediation was on. He said it was over, and the call was terminated," Hatch told the Pioneer Press on August 17. And on Minnesota Public Radio the next day, Hatch said:

"If you look at the record, the cell phone records shows it’s a one minute conversation. The one minute conversation occurred at 4:21 in the afternoon. I had asked the judge if the mediation was going on. I believe that he indicated that it had been terminated and that was it. It was a one minute call, and that includes calling the clerk’s office, who then had to transfer me to the judge to begin with."

In the MPR interview, Hatch also said that the judge had made the allegation of an ex parte contact after Hatch had made the motion to disqualify the judge, and that Judge Leary was probably retaliating against Hatch for making that motion:

"I made a motion to remove the judge, and the judge took a shot at me....The judge denied the motion, obviously didn’t like the fact that I was making a motion to remove him, and then he said, well Hatch made an inappropriate call."

Hatch’s statements were false. Indeed, they appear to have been calculated falsehoods.

For starters, the record shows that Hatch made the motion to disqualify Judge Leary five days after Judge Leary gave notice to the parties of his intention to disclose the phone call on the record. It was Hatch who filed a baseless motion in retaliation for the judge’s action of disclosing the ex parte phone call, not the other way around. The court records show beyond any question that Hatch flatly misrepresented the sequence of events.

It is also instructive that Hatch did not offer his justification for the call -– that he thought the settlement discussion might still be going on –- at the June 19 hearing, but rather a month-and-a-half later. One would think that if the call were truly an innocent one-minute phone call made under a mistaken impression, and promptly and cordially terminated, that this would be the first thing Hatch would have said on the record at the court hearing. Instead, it appears to be the last thing that occurred to Hatch, six weeks later. The circumstances strongly suggest that this explanation was contrived after the fact. It is also hard to explain why the judge would have been concerned about the call if it were as Hatch portrayed it, or to understand what possible reason the judge would have had for making up such a story, as Hatch claims. As noted, the suggestion that the judge was retaliating for Hatch’s motion to disqualify him is not consistent with the sequence of events.

But the real smoking gun lies in the cell phone records of the calls received by the judge’s chambers, which expose Hatch’s sworn affidavit as false. Hatch had attached his government cell phone records, showing the one-minute call. But the courthouse phone records show that a second call was made to Judge Leary -– from Hatch’s personal cell phone -– at 4:22, immediately after the one-minute call from Hatch’s government cell phone. That second call lasted seven minutes, an amount of time consistent with Judge Leary’s account of the conversation and not consistent with Hatch’s.

What appears to have happened was that Hatch obtained the judge’s number from the clerk's office, then hung up and switched to his personal cell phone, from which he made the seven-minute call to the judge. After that seven-minute call, Hatch returned to his government cell phone and called Solicitor General Lori Swanson at the Attorney General’s office at 4:30 -– almost exactly seven minutes later. Hatch’s affidavit states that he had a one-minute call with the judge. Next, it states that he called Swanson. It does not mention the seven-minute call to the judge in between these two.

Hatch's public statements that only one call had occurred, that it had been one minute in length (counting the transfer from the clerk’s office), and that it was not of the substance or duration Judge Leary had said were deliberately misleading. It is not a crime to lie to the press, but it is improper under the Minnesota Rules of Professional Conduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation" (Rule 8.4(c)). Another rule flatly states that a lawyer representing "shall not knowingly make a false statement of material fact or law to a third person." (Rule 4.1(a)).
Moreover, it is also professional misconduct knowingly to file a false, sworn affidavit. Hatch’s affidavit, made under penalty of perjury, is cagier than his public statements, but still deceitful: "I talked to Judge Leary. The call lasted one minute." This was, at best, a quarter-truth. In context, it appears to have been deliberately false and calculated to mislead.

Did the judge do anything wrong? Had he thought of it more quickly, he should have shut the phone conversation down once it became clear that it was an improper ex parte conversation about a case before him. Instead, he contested what Hatch was saying -– a natural response. In any event, Judge Leary’s fault (if any) was only in not reacting more quickly to the situation, when taken by surprise. That in no way justifies Hatch’s conduct. Judge Leary’s account is not at all self-serving; he appears to have had no reason to fabricate his version of events; he moved quickly to put the whole matter on the record; and he certainly could not have invented the phone records showing a seven-minute call from Hatch’s personal cell phone.

It is worth pausing to take inventory. Attorney General Hatch first made an improper ex parte phone call to a judge handling a case in which Hatch’s office was involved. The fact that Hatch switched cell phones to make the call tends to show that Hatch was aware of what he was doing and was conscious of its impropriety.

Hatch then attempted to threaten Judge Leary. When made aware that the judge would disclose the call, Hatch filed a baseless motion to disqualify the judge. Six weeks later, he denied the substance of the phone call and falsely stated, publicly and in sworn court filings, that the call lasted only one minute. He misrepresented the timing of the disqualification motion to discredit the judge.

The chain of events involved here shows an extraordinary pattern of disregard for fundamental rules of professional conduct. Mike Hatch should not be practicing law in the state of Minnesota, let alone serving as its Attorney General, let alone standing on the threshold of its highest office.

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