The Case Against the Minnesota Supreme Court
COVID-19 is making its presence felt in Minnesota, and it’s bringing to light a lot of problems that have remained under-the-radar until now.
Now we’re seeing how underprepared our health care systems were for a pandemic. Now we’re wishing we had all spent more time with our parents and grandparents when we could visit from closer than 6 feet.
And now, Minnesota’s private defense attorneys are wishing they had pushed harder, sooner, for online access to court records that prosecutors, judges, and even public defenders take for granted.
To be very clear: everyone should be incredibly proud of how well the executive and legislative branches of the Minnesota Government have responded to COVID-19. And the judicial branch acted promptly and effectively as well – postponing all but the most essential court hearings, easing non-violent offenders out of our overcrowded jail network, and facilitating quick-yet-fair resolution to as many pending cases as possible.
However, there is definite room for improvement when it comes to the judiciary. While the government at both the state and federal levels has removed barriers to adapt to the crises, the state judiciary at the highest levels is continuing to limit attorneys' access to publicly available documents, and in many cases now prohibits it. This story has seen a lot of coverage on KSTP Channel 5, where Jay Kolls is following the story.
Here’s the basic story: when a prosecutor wants to see a new filing in a criminal case, they simply log into a website, click a link, and they can read whatever document was filed. This isn’t just county attorneys – a private law firm with a prosecution contract has the exact same access.
However, when a private defense attorney tries the same trick (even if they were the one who filed the document!) all they can read is “access denied.” We can’t read what’s been filed in our client’s cases, unless the prosecutor emails it to us, or we visit the courthouse in person and use one of the few available terminals that are accessible to the public.
That was barely tolerable before COVID-19. Now, it’s incredibly burdensome. But when a group of defense attorneys requested full, remote access to court records -- the same access as government lawyers and court staff -- Minnesota's Chief Justice delegated the response to Jeff Shorba, the State Court Administrator. Shorba responded in March essentially saying, "Tough shit! Deal with it."
We’re defense attorneys – we’re used to getting spat at. The response was disappointing, but not surprising. But then, things got . . . aggressive. Not only did the court administrator flip us the proverbial middle finger in his letter, last night in an interview with KSTP, he spewed a fountain of misleading information.
To be clear: nothing he said in his response was a lie. But it was worded better than the best corporate attorney could hope for, if you wanted to disparage a reasonable request without actually saying anything meaningful at all.
The fact is that defense attorneys don’t have the access they need to electronically filed documents; you can’t dispute that. So, with that in mind, read Jeff Shorba’s wonderful doublespeaky response to our request:
“I would say it's outrageous, and in my mind, wildly inaccurate," said Shorba. "Attorneys continue to have all remote access options they had prior to the pandemic and to suggest otherwise is entirely false." He went on to add that, “I think it is wrong because I think the remote access is still available. Going to the public terminal, and looking at the public terminal, is just one of a multitude of ways to access documents."
It’s an embarrassing response from someone who should be expected to know better. Calling our request for remote access – to better assist our clients – “outrageous” is insulting, when the best he can come up with for a rationale is that we have “all remote access options we had prior to the pandemic.”
. . . . Jeff, we didn’t have access prior to the pandemic. That’s the point. You're either ignorant of your own court procedures or are intentionally trying to mislead the public. But we know.
I’m not sure how likely a federal lawsuit against this practice was prior to Mr. Shorba’s statements on KSTP, but the odds have gone WAY up since then.