BillMcGaughey.com

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I file a complaint against Judge James T. Swenson

by William McGaughey

 

Judge Swenson posing in front of law books which he supposedly spends a large part of his time reading

 

In Minnesota citizens who feel they were abused by the judicial system are allowed to file complaints against judges and other court personnel. I had a terrible experience with divorce. After the last appeal was made in the courts, I decided to file a complaint against the judge who presided over my divorce trial, the Hon. James T. Swenson. My complaint was mailed to the Minnesota Board of Judicial Standards on May 14, 2016. The text of the complaint reads as follows:

May 13, 2016

Minnesota Board on Judicial Standards
2025 Centre Pointe Blvd. suite 180
Mendota Heights, MN 55120

"Dear judicial reviewer:

I am filing a complaint against Judge James T. Swenson in Minnesota’s fourth judicial district. This judge presided over a two-day divorce trial on May 7 and May 8, 2012. My ten-year marriage ended when my Chinese-born wife, Lian, filed for divorce on March 8, 2011. Initially represented by an attorney, I was self-represented at the time of the trial because after seven months of ceaseless, fruitless bickering between the attorneys I could no longer afford my attorney’s services. My wife was represented by attorney Wing-Sze Wong Sun whose fees were paid by my wife’s daughter from the proceeds of property in China sold four months before the divorce case was filed.

 

Although the judge’s decisions are not grounds for discipline by this board, nevertheless I think it useful to summarize his rulings to support my allegation of possible bias. All these decisions were made using the judge’s presumed “judicial discretion”:

(a) Division of marital property: I was $5,000 in debt at the time of marriage, and was $330,000 in debt when the divorce was filed. Therefore, the marital debt was $325,000. However, the divorce decree gave me marital real estate worth $110,000. It gave my wife a marital financial asset worth $5,000. If the net marital debt of $210,000 had been divided equally as in common practice, each party would have been assigned $105,000 of the marital debt. Instead, Judge Swenson assigned me all of the debt. After I filed a post-trial motion challenging that decision as inequitable, he shifted $5,771 of the debt to my former wife leaving me with the rest - around 98% of the marital debt. This was not equitable.

(b) Spousal maintenance: Despite a finding that I had inadequate income to support myself, the judge ordered me to pay my former wife $500 per month in permanent spousal maintenance.

(c) Sale of nonmarital asset: The judge ordered me to pay my former wife $50,000 from sale of my nonmarital assets. However, the Minnesota Court of Appeals overturned that decision.

(d) Increased spousal maintenance: When I ran out of credit and incurred an additional contractual obligation to make regular payments to a debt-servicing firm, the judge denied my motion to eliminate or reduce my monthly obligation to pay spousal maintenance on the basis of substantially changed conditions. He instead increased my spousal-maintenance obligation by $100 per month because my former wife said she now had increased needs.


Grounds for alleging possible bias by the judge:

1. Gross disparity between the parties in the time allowed for questioning: Judge Swenson took charge of the trial at the outset, personally directing the initial questioning. Then, around 10:00 a.m. or 10:30 a.m., he turned the floor over to my wife’s attorney. Her questioning was largely devoted to establishing two false propositions - (1) that my wife had done more than a thousand hours of maintenance work on my properties, justifying a claim to partial ownership, and (2) that marital funds had been used to purchase the properties (true only of the duplex at 1715 Glenwood Avenue). Such questioning and discussion took up the rest of the first day. It continued for two more hours on the second day.

Finally, around 11: 00 a.m., I was allowed to begin my presentation. I had an hour before lunch and perhaps an hour and a half after lunch. At that point, the judge pressured me to wrap up my presentation. Then, inexplicably, he gave the other side another hour or so for additional questioning. I was given ten minutes (reduced to five) for additional remarks at the end.

By my calculation, then, the judge gave my wife’s attorney 9 hours of trial time to make her case; and me, only two and a half hours. This shows bias. (When I complained about this, however, the judge claimed that he had been keeping track of the time allowed for both sides’ testimony and I had actually been given more time than my wife. The transcript clearly suggests otherwise.)

2. The exhibit snafu: Around a year earlier, the court referee had sent a letter to both parties setting a date and ground rules for the trial. This letter had gone to my attorney at that time who later withdrew from the case. When he turned over the paperwork to me, I put this letter in a folder. I had forgotten the letter and its contents when it came time to prepare for the trial. I numbered my exhibits E-1, E-2, E-3, etc. (E for exhibit) where the referee’s order required that they be labeled 101, 102, 103, etc.

Judge Swenson went into a mini-rage when he saw that I had disregarded the referee’s instructions. He personally took charge of the numbering whenever I presented an exhibit at trial. For each accepted exhibit of mine, the judge assigned his own number; and he did so in a highly irregular manner. For example, exhibit E-8 became exhibit 208, exhibit E-13 became exhibit 202, exhibit E-15 became exhibit 391, and exhibit E-17 became exhibit 133.

It got even worse. Shortly before lunch on the second day, the judge requested that I physically renumber all the remaining exhibits according to a particular scheme and give them to the other attorney. It then took this attorney the remainder of lunch time and several hours into the afternoon session to do her checking and renumbering and return the exhibits to me one by one over an extended period of time. Disorganized stacks of paper were therefore scattered before me on the table in the afternoon of the second day as I was trying to wrap up my case. I became confused in trying to keep the information straight.

All this could have been avoided if the judge had simply allowed me to continue with E-1, E-2, E-3 exhibits, whose numbering would not have been the same as what the plaintiff used.

3. The Chinese-language interpreters: My Chinese-born wife, Lian, spoke English well enough to work on the sales floor of Target in downtown Minneapolis without an interpreter for three and a half years, even receiving an award for Employee of the Month in October 2005. Yet, she never was allowed to give unassisted testimony in English at the trial. In his order of July 20, 2012, Judge Swenson stated (under “spousal maintenance”): “Wife is a 56-year-old immigrant from China who has not mastered the English language, even to a moderate degree.” Guided by this fiction, the court allowed two Chinese-language interpreters to assist Lian with her testimony.

It became clear that the two interpreters were being used to strategic advantage when the judge stated at one point during the trial (pages 380-381 of the transcript): “The record should reflect that one interpreter handed something in writing to the other interpreter.” When the interpreter was asked to read the piece of paper, it referred to “documentation” that related to my former wife’s “personal safety”, which seemed to be a reminder to bring up the issue of domestic abuse.

The issue here is whether the language translators should be coaching a party or a party’s attorney to raise certain issues. When I objected, the judge did nothing to reprimand the attorneys. Indeed, when I later mentioned this incident to complain about the trial, the judge essentially called me a liar. Specifically, the judge stated at the hearing on October 9, 2012: “I can understand you can disagree with what I did, but let’s not lie.”

The judge’s position then was that I should have objected to the note passing during the trial. The truth was that I did not realize at the time what was happening because I was sitting at the other end of the table. Witness Alan Morrison, sitting in the audience, later explained to me what had happened. Judge Swenson did see the incident, and might even have realized what was happening, but he did nothing about it except later to call me a liar for raising the subject. He was essentially presiding over a disorderly court with respect to the translators and blaming me when I complained.


4. The judge’s “veracity” offensive: My post-trial motion of August 2012 raised so many doubts about factual statements in Judge Swenson’s July 20, 2012 ruling that he felt he needed to attack my credibility. Hence, he attacked my “veracity”, which would be a judge’s way of calling me a “liar”. He wrote in his December 28, 2012 decision: “ Before addressing his specific concerns, I need to discuss my serious concerns regarding Respondent’s veracity ... In addition to this example regarding his substantive arguments, Respondent’s post-trial motion substantially misrepresents what occurred during the trial.”

My first opportunity to set the record straight was in the motion of January 27, 2015, for the court to amend its findings with respect to proposed elimination of spousal maintenance. I addressed the previous “veracity” issue in the following way:

The first situation that gave rise to accusations of a “veracity” problem was the apparent inconsistency between my statement at trial and in a letter addressed to the divorce-court referee that I had used the proceeds of a life-insurance policy purchased by his brother to pay off existing debts and a statement in my post-trial motions that the same money was the source of payments to my former wife which the court considered “dissipated” assets. Both statements are true. They are reconciled in the following way:

I received the proceeds of the life-insurance policy, which was a non-marital asset worth $114,000, in February 2010, and promptly used the bulk of this money - about $70,000 - to pay off lines of credit with balances owing. Therefore, the statement that I “used the proceeds of a life-insurance policy worth $113,000 to pay off debt” is correct. Note that I did not say I spent all of the money on paying off preexisting debt, only an unspecified amount of debt. In his memorandum, however, the judge claimed that respondent had “adduced a number of exhibits to support his contention that he spent all of the insurance policy proceeds on pre-existing marital debts.” I, the respondent, had made no such statement. The judge was careless with his facts.

The judge also suggested a “veracity” problem in my complaint that he had short changed me with respect to the time allowed for my testimony at trial compared with the time allowed my wife. He offered no proof of that, only the assertion that he had meticulously kept track of the time allowed for both parties’ testimony. I had not observed the judge conspicuously tracking time. However, my rebuttal was based mostly on a page count in the trial transcript seeming to be devoted to one or another party’s testimony. I also know from personal recollection of the experience that the judge was not telling the truth in this matter.

A final “veracity” issue had to do with whether or not Judge James Swenson had not given me sufficient time to make my case at trial. The judge claimed that I had voluntarily “rested my case” where the trial transcript shows that the judge did this for me. He repeatedly asked me if I was finished with my testimony and then, when I hesitated, pronounced that I was done. Also, the judge reneged on a promise to give me ten minutes of time at the end by cutting my testimony short when he did not like what he heard. This, too, was improper.

The gauntlet on lying was tossed. Judicial honor was at stake. So how did Judge Swenson respond to my well-documented arguments showing that he, not I, had a veracity problem? He declined to respond to any of these arguments on the grounds that they were not offered in a proper form.

Judge Swenson’s decision which was received on July 19, 2013, states: “I will not respond to each of the newly adduced facts or respond to each of Respondent’s new arguments and explanations because they are not proper in the context of a motion for amended findings. ... I also decline to address the re-arguments that dominate Respondent’s submission, other than to note that his current motion is largely an impermissible motion for reconsideration.”

5. My arrests for domestic abuse: The issue of domestic abuse affected the divorce. I was twice arrested and jailed for this offense at my wife’s instigation. I contend that those arrests were entirely without merit. Ultimately, when I refused to settle, the city attorney dropped all charges. My wife’s attorney kept bringing up this subject during the trial even though the no-fault divorce statute tries to exclude issues of this sort. The judge did nothing to restrain her.

I felt obliged to submit a document showing that the city prosecutor dropped all charges against me for domestic abuse. Page 393 of the trial transcript showed that I submitted a document titled “Dismissal by Prosecuting Authority Pursuant to 30.01 regarding MNCIS case 27-CR-12-2031.” The judge accepted my exhibit but then felt obliged to say: “Okay, that’s received. Now, I’ll tell you, sir, all that does is it tells me that this was dismissed for insufficient evidence to proceed, okay.” (my underlining)

The clear implication here is that Judge Swenson, having no knowledge of the situation one way or another, surmised that I might well be guilty of domestic assault. By law, such issues are not supposed to be brought into Minnesota divorce trials but the judge was suggesting otherwise. From my perspective, it was an improper statement showing possible bias.

The judge followed up on his lingering suspicions concerning my character with “Point 10 of the Findings of Fact in his July 20, 2012, ruling: “The parties are subject to a Domestic Abuse No Contact Order with provisions allowing contact, Hennepin County Court File 27-CR-11-XXXX.” I successfully argued that this incorrect statement ought to be removed in the amended findings of fact.

The matter of my arrests for domestic assault, though groundless, may well have played a part in Judge Swenson’s attitude toward me. I have posted the entire record of those incidents, arrests, jailings, and judicial proceedings on the web at http://www.billmcgaughey.com/domesticabuse.html.

6. The judge’s high-handed termination of the trial: Having given me two to three hours to present my case during the two-day trial, Judge Swenson cut off my testimony while promising ten minutes’ time at the end. He high-handedly refused to allow either party to make closing statements. When, in my ten minutes, I started to become specific about my financial situation and suggest an equitable split of the marital debt in my closing remarks, the judge threw a fit. He cut off my testimony mid-sentence with ”We’re done, we’re done, You just refuse just to do facts” and abruptly ended the trial. He later reneged on Referee Cochrane’s promise that the parties could submit proposed findings.

I think this would qualify as a violation of prescribed judicial demeanor in rule 2.8 of Minnesota’s code of judicial conduct, that “a judge shall be patient, dignified, and courteous to litigants ... and others with whom he or she “deals in an official capacity.”

7. A dishonest calculation of personal needs in awarding spousal maintenance: Judge Swenson did a quick calculation of personal needs for my wife and me in which he determined that I could fully meet my needs from pension income and my wife was $1,000 short. He concluded that a $500 monthly transfer from me to her would equalize the hardship. An initial objection is that the judge’s calculation did not take into consideration my wife’s $300 monthly Chinese pension which was clearly in the record.

More significantly, the judge’s calculation disregarded the monthly interest expense that I had to bear as a result of his assigning me over $200,000 of the marital debt and assigning my wife only $5,771 of the debt. Clearly, this debt is in the record. For example, page 333 of the transcript reports that exhibit “385 is North Star Mortgage, showing a balance in February of ’12 of $173,000 plus.” This mortgage document disclosed an interest rate of 6.875%. If we apply the interest rate to the mortgage balance, we find that the annual interest payment on this loan was $11,893.75, which works out to $991.14 per month. This was a real expense for me yet the judge included it nowhere in his calculation of needs upon which the spousal-maintenance obligation was based. And besides the North Star mortgage was another $150,000 or so of interest-bearing debt, some at much higher interest rates, that the judge also assigned to me. The judge’s needs calculation was patently dishonest.

8. Tiny acts of rudeness: Judge Swenson exhibited personal arrogance and rudeness on numerous occasions throughout the two-day trial. He refused to restrain the opposing attorney when she persisted in personal attacks on me. A few examples of the judge’s rudeness appear in the following pages of the trial transcript: 1. page 264 (I am told to stop when I ask for clarification of “bank of mom and dad”. I had no account at this bank.) 2. page 267 (The judge interrupts a question about when my step-daughter knew that I had learned she bought an apartment.) 3. page 271 (The judge accuses me of “editorializing” when I ask for clarification about the witness’ statement.) 4. page 278 (When I ask for time to present my evidence, the judge rudely comments: “You would have more than enough time if you weren’t laboring so hard on cross-examination and not getting anything out of it. I’ve warned you that multiple times.”) This goes on and on. On page 400, the judge says I cannot make a closing statement because I spent too much time discussing attorney’s fees. He then virtually forces me to rest my case while promptly giving the other side more time to develop its case. This is a small sampling (not necessarily the worst) of what went on at the trial.

 

Additional resource: A complete narrative of this case appears on the web at http://www.billmcgaughey.com/divorcebook.html, including most court documents. This narrative contains 285,000 words. The characters are given fictional names because someone (not me) erased the file on my computer when I originally posted it. There have since been no further problems.

Final Comment: Shortly after my two-day divorce trial, Judge James T. Swenson stepped down as chief judge of Hennepin County. The election to replace him might even have been held during the trial. While I can sympathize with the judge in falling back to a regular position in what might be one of the least pleasant court assignments, I nevertheless must resist being a victim in the process. I was not treated fairly by this judge."

 

I also prepared a list of exhibits to accompany this complaint. My list is as follows:

 

William McGaughey - Exhibits

Signed and notarized statement of Alan J. Morrison regarding Judge Swenson’s observing the Chinese language interpreters passing notes to each other with answers that my wife might make to my questions

page 3 p. 15 judge’s order of July 20, 2012, statement regarding my wife’s language abilities

page 3 p. 381 trial transcript The judge observes translators passing notes to each other, listens to their content, and then does nothing in regard to an obvious impropriety.

page 3 p. 6-7 transcript of hearing on Oct. 9, 2012 Judge calls me a liar when I suggest that the trial was cut short before I had a chance to ask questions about my wife’s English language abilities.

page 4 pp. 3-4 first two pages of Judge Swenson’s memorandum in his December 28, 2012 regarding amended findings. This presents his challenge to my “veracity”.

pages 5 and 6 pp. 393-94 trial transcript When I present a document showing that the domestic-abuse case against me was dismissed, the judge suggests that I still might have been guilty of the charge.

page 6 pp. 445-46 trial transcript Judge Swenson abruptly cuts short my final ten minutes of testimony and ends the trial.

page 7 p. 370 trial transcript With respect to the $500 per month “sharing the hardship” calculation, the judge omits any consideration of the interest I have to pay on the $325,000 in debt he had me assume. Here is direct testimony that this interest exceeds my monthly retirement income.

page 264 trial transcript Judge will not let me ask the name of the Chinese bank which I allegedly used in purchasing my step-daughter’s condo.

page 271 trial transcript The judge accuses me of “editorializing” when I ask my step-daughter about putting a new roof on the house in Milford.

page 278 trial transcript Judge Swenson tells me I have already used much of my time before I even began my period of questioning.

page 400 trial transcript Judge Swenson says that my statement on attorney’s fees is tantamount to my closing statement.

 

The exhibits were mostly photocopied pages from the trial transcripts or judge's orders.

 

Alan Morrison's signed and notarized statement reads as follows:

May 13, 2016

To whom it may concern --

I was a witness at the McGaughey’s divorce trial on May 8, 2012, when I witnessed an unusual event. The judge commented that he saw one of the Chinese-language translators passing written notes to Mrs. McGaughey. The judge asked what was in the note. I recall that the note seemed to be coaching Mrs. McGaughey on how to answer the questions. To my surprise, the judge only asked her to read what the translator had written. He did not ask to see the note and he did not take further action when it appeared that the translators were acting improperly. I was surprised by this lack of interest on the judge’s part.

Alan J. Morrison

 

After a short time, my appeal is denied.

It did not take long for the Minnesota Board on Judicial Standards to respond. My request for review of Judge Swenson's conduct was denied. A letter from the Board'sexecutive secretary, Thomas C. Vasaly, announced the decision. A short booklet about the board accompanied Mr. Vasaly's letter.

The letter read:

May 17, 2016

Dear Mr. McGaughey, Jr.:

On behalf of the Board on Judicial Standards (“Board”), thank you for your recent letter, which we received on May 16, 2016.

You allege that Judge James Swenson was biased against you and was discourteous to you in your divorce proceedings. In support of this allegation, you assert, among other things, that Judge Swenson did not fairly apportion the marital debt, ordered you to pay spousal maintenance although you did not have adequate income to support yourself, ordered you to pay your former wife $50,000 from non-marital assets, allowed your wife’s attorney far more time to present her case than you were allowed, and falsely accused you of lack of veracity.

The Board is not able to take action on your complaint. The Board generally does not have jurisdiction to review a judge’s legal rulings or other discretionary decisions, such as the amount of time parties are given to present their cases or the identification of exhibits. Although the Court of Appeals reversed Judge Swenson’s order that you pay your wife $50,000 from non-marital assets, the Court of Appeals otherwise sustained Judge Swenson’s findings. The 2015 Court of Appeals decision sustained Judge Swenson’s ruling on the child support motions, stating that “the district court appropriately discounted the validity of certain assertions that Williams(sic) made.” The Board is not able to reverse legal rulings or intervene in legal proceedings.

I enclose the Board’s brochure. Additional information is available on the Board’s website, www.bjs.state.mn.us. As the brochure and the website indicate, the Board is an independent agency that reviews complaints alleging that a judge engaged in misconduct that constitutes a violation of the Code of Judicial Conduct. Except under very limited circumstances, judicial action based upon the alleged finding of incorrect facts or the improper application of laws or procedures does not constitute judicial misconduct. Consequently, the Board does not have jurisdiction over your complaint.

My dismissal of your complaint will be reviewed for approval by a member of the Board. You will not receive further notification from the Board unless the Board member does not approve the dismissal of your complaint.

Thank you again for your correspondence.

Sincerely,

Thomas C. Vasaly
Executive Secretary

 

I fire off a letter criticizing the Board's decision.

I was stunned. I thought I had a strong case of judicial misconduct but the Board's response suggested otherwise. Not being a fan of Minnesota courts, however, I was not content to let this be the last word. First, the Board would know why it had erred - then the whole world.

Accordingly, I wrote and mailed the following letter to the Minnesota Board on Judicial Standards on Friday, May 20, 2016:



May 20, 2016

Thomas C. Vasaly
Minnesota Board on Judicial Standards
2025 Centre Pointe Blvd.
suite 180
Mendota Heights, MN 55120

Dear Mr. Vasaly:

I have received your letter of May 17th informing me that the board has rejected my application that asked it to review several matters of complaint directed at Judge James T. Swenson of the 4th District court.

I notice that your letter of rejection was dated one day after the date (May 16th) when you say you received my letter. To me, this suggests that the issues raised in my letter were given only a cursory glance.

Was my letter shown to any member of the board before you made your decision? Or, were the issues raised in my letter considered to be so completely without merit that my complaint could be rejected by staff without being considered by the board or any of its members? If that was the case, you offered no explanation or justification for the decision in your letter.

The Board website strongly suggests that the decision-making power resides with members of the board who are individually identified and whose status with respect to the legal profession is made clear. If it is instead staff members who make the key decisions in a case, the idea of a board overseeing complaints is misleading. Was it you alone, Mr. Vasaly, who decided that my complaints were without merit or did you receive help in reaching that decision? Some transparency would be in order.

You write that you will have an unidentified member of the board review your staff decision to reject my application and, if the rejection is sustained, I will receive no further notice. Under those circumstances, I would guess that the chances that your decision will be overturned are slim to none.

While in your letter of May 17th you initially refer to the judge being discourteous and biased towards me, you then suggest that the proof of this lies in his rulings on various issues in the divorce settlement. Nothing could be farther from the truth. My letter raised eight separate issues that have to do with the judge’s dishonesty and lack of proper judicial demeanor rather than with the judicial decisions per se. Therefore, your statement that I offered “in support of this allegation” the judge’s ruling on spousal maintenance and on the $50,000 claim to my non-marital assets was false.

Your letter rejecting my application to review the judge’s conduct is largely a recitation of issues relating to the judge’s decisions. It is true that, in my letter, I initially summarized the judge’s decisions in four areas, all of which went heavily against me. I thought that giving this information would add context to my arguments. However, I was not asking you to review those decisions as if I thought the board was a higher court. I was asking you instead to review specific issues that were raised in eight separate categories that follow the heading: “grounds for alleging possible bias by the court”.

Therefore, it was untrue for you to suggest that I was asking you to review the “judge’s legal rulings or other discretionary decisions”. I wanted the board to review evidence of the judge’s bizarre and intemperate behavior, as well as his provable expressions of dishonesty. Would that kind of complaint interest you?

I notice that the pamphlet that explains policies and procedures of the Minnesota Board on Judicial Standards includes a fairly narrow range of issues that the board is willing to investigate. I have no way of knowing, for instance, whether the judge was drunk while on duty or whether he accepted bribes. Only one category of complaint really applies in this case: “rude, abusive, or otherwise improper treatment of parties, counsel, witnesses, jurors, court staff and others”. Even so, my letter does include evidence, or at least allegations, that the judge exhibited “improper courtroom decorum” in that regard on a number of occasions.

Does it interest you, for instance, that Judge Swenson witnessed the Chinese-language interpreters passing notes to each other suggesting how my wife should answer certain questions? He did nothing at the time to restrain or condemn such behavior but, on the contrary, called me a liar when I later raised the issue. My submission included an affidavit from eyewitness Alan Morrison supporting my claim that the translators acted improperly. Such an incident gets at the heart of judicial integrity yet you seem to dismiss it out of hand.

Does it interest you that, even though allegations of domestic abuse are not supposed to be introduced in divorce trials, the judge not only failed to admonish my wife’s attorney not to raise such issues but he also made a comment strongly suggesting that he thought I might well be guilty of domestic abuse? Isn’t that an example of bias? And, then, after I had submitted evidence to the contrary, the judge included this allegation in his findings of fact, making statements that proved to be incorrect.

Sometimes domestic-abuse charges are used to strategic advantage in divorce cases. I, on the receiving end, felt it necessary to write up the complete story of my two arrests and post it on the web, letting the reader decide my innocence or guilt. To date this site has received thousands of hits.

Does it interest you that the judge in his ruling of December 28, 2012, repeatedly accused me of lying - i.e., having a “veracity” problem - and that when I thoroughly refuted each of the judge’s allegations, he refused to respond to my arguments and information? The evidence was in the record but the judge, having impeached my character, would not defend his previous accusations. Is that proper for a judge? Do you care about this?

Then look at the way the judge conducted the two-day trial. Is it normal for a judge to insist on a bizarre renumbering scheme for one party’s exhibits? Is it normal for a judge to give one party more than three times the amount of time for questioning than the other party? Is it normal for a judge to declare that the parties will not be making closing statements? Is it normal for a judge to cut off one party’s testimony mid-sentence and declare the trial to be at an end? This is egregious judicial behavior which cries out for review by an impartial board. Do you not, at a minimum, find instances of “rudeness” and “abusive” officiating in what I have submitted for review?

Minnesota statute 490A.02 refers to “habitual intemperance” and “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” as grounds for possible complaint against a judge. I would suggest that this judge was intemperate, not with respect to consumption of alcohol but to his consistently arrogant demeanor exhibited toward me. His high-handed, arbitrary behavior and unwillingness to control the improper activities of translators have brought the judicial office into disrepute.

For all these reasons, I would urge you to reconsider your decision to dismiss my complaint out of hand. Please instead refer it to the board.

Sincerely,

William McGaughey

 

a follow-up letter

My letter to to Board administrator was sent on May 20th. I waited several weeks for a reply but none was forthcoming. Then on June 9, 2016, I wrote and mailed the following letter to Mr Vasaly, hoping to spur some action:

Thomas C. Vasaly
Minnesota Board on Judicial Standards
2025 Centre Pointe Blvd. suite 180
Mendota Heights, MN 55120

Dear Mr Vasaly:

Is it possible that you have forgotten something?

On May 13, 2016, I asked the Board to investigate possible misconduct by Judge James T Swenson of Hennepin County. A day after receiving my letter, you denied my request on the grounds that the Board was unable to review a judge’s legal rulings or discretionary decisions.

On May 20, 2016, I then wrote you a letter pointing out several aspects of the judge’s conduct - such as allowing interpreters to assist parties in answering questions and not allowing the parties to make closing statements - which appeared to be abusive and subject to review by the Board.

I am still waiting for a reply to this letter. I am also waiting to learn the decision of the Board member who was to have reviewed your decision.

Thank you for your attention to this matter.

Sincerely,

William McGaughey

 

a surprise ending

As I was preparing to publicize the website that told the story of my divorce, I learned that Judge James T. Swenson was no longer listed as a Hennepin County judge. A short announcement said that he had retired as of June 1, 2016, despite the fact that he had been reelected to a six-year term in 2014. I do not know if the judge's premature retirement was related to this complaint. In any event, my case was closed.

I mailed the following letter to Thomas Vasaly dated June 15, 2016:

 

Dear Mr. Vasaly:

I have learned today that Judge James Swenson has retired. Therefore, there is no reason to pursue my case against him further.

Sincerely,

William McGaughey

 

post-surprise communications

On the afternoon of the day (June 16) when I mailed the above letter to Thomas Vasaly, I received an envelope from him enclosing two letters. They are as follows:

"June 14, 2016

Dear Mr McGaughey:

I am responding to your letter dated June 9, 2016.

You ask for a response to your May 20 letter. I responded on May 24. I enclose a copy of my response.

You state that several aspects of the judge’s conduct appear to be abusive and subject to review by the Board. That is incorrect. Among other things, as I noted in my May 17 letter to you, the 2015 Court of Appeals decision sustained Judge Swenson’s rulings on the child support motions.

I anticipate that your complaint will be reviewed by a Board member within two months.

Sincerely,

Thomas C. Vasaly
Executive Secretary"

 

With the letter dated June 14th came a copy of a previous letter sent to me from the Board dated May 24, 2016. However, I had never received it. Truthfully, it is just as likely or more likely that the letter arrived at my home and was lost as that the letter was never written. But the letter does offer a partial explanation of issues that I previously raised. The first letter whose copy I received with the second is as follows:

"May 24, 2016

Dear Mr. McGaughey:

I am responding to your letter dated May 20, 2016.

You ask whether your complaint was reviewed by a member of the Board before I dismissed it. The answer is no. Under Rule 6(b) of the Rules of the Board, when the Executive Secretary determines that a complaint should be dismissed because the Board lacks jurisdiction, a member of the Board reviews the dismissal after, not before, the dismissal is issued.

When your complaint was received, I carefully reviewed your allegations, including the allegations you refer to in your most recent letter. You believe you’re your allegations raise issues of rude and abusive conduct, improper courtroom decorum, bias, intemperance,and conduct prejudicial of the administration of justice. However, your allegations concern discretionary decisions by Judge Swenson. The Board does not have jurisdiction over such decisions. To give an example, you complain that Judge Swenson found that you had a “veracity” problem. A judge has the discretion to make findings such as this. If a finding is erroneous, the finding could be a subject for appeal, but it is not a subject for review by this Board. Although I understand that you are dissatisfied with the dismissal of our complaint, the dismissal was required by the rules under which the Board operates.

Sincerely,

Thomas C. Vasaly
Executive Secretary"

At this point, it would have served no purpose to respond since Judge Swenson had resigned his position.

 

still more surprises

Well, it seems that Judge Swenson has not completely retired, for his web page now (in August) describes him as a "senior judge". Ballotpedia.org explains: “Senior judges are judges who, though officially retired, continue to hear cases on the court.” I suppose Swenson draws a judicial pension while also receiving compensation for assignments in his current position. That's better for him personally, I suppose, than four more years as a regular judge in Hennepin County Family Court.

When a judge seeks reelection as Swenson did in 2014, I think there is an implied commitment to serve out his term of office unless uncontrollable events such as illness make this impossible. That seems not to have been the case if, within a few months, Swenson had arranged to be appointed to another judicial position.

But the worst part is that the public was kept completely in the dark. I have been unable to find news reports of Swenson's career moves. Is the public thought unqualified to judge, or even be informed about, what judges do?

 

commentary

There is no reason why anyone other than me or my immediate relatives or friends should be interested in this story. Most of us have limited time to investigate such things. We want to believe in the integrity of public officials. Yet, if judges did it to me, they can do it to you or to someone you love. My only recourse is to tell my story as accurately and completely as possible.

Since you do not know me personally, you must decide whether or not this story rings true in terms of your own experience. This website, http://www.billmcgaughey.com/judgeswenson.html presents the basic case against Judge Swenson. There is much more information about him in another web site that contains the complete record of my divorce. It is found at http://www.billmcgaughey.com/divorcebook.html. Judge Swenson enters the picture in chapter 29. I also have the complete trial transcript that will substantiate what appears in the posted records.

I am no fan of our judicial system. The medieval pageantry of courtrooms, the judges' black robes, the elevated platforms, everyone rising when the judge enters the room, the required forms of address (such as "your honor"), and all that humbug, strike me as an attempt to intimidate the public. But judges are simply government officials with a particular duty to perform. I honor them when they perform this duty conscientiously. When they do not (as in the case with Judge Swenson), I withhold expressions of honor and respect. That is a right of higher standing and priority than anything the courts can devise.

The next big thing, if we are lucky, is to reform the court system, including the stylistic changes that I have suggested. Judges must follow the written law. They have no "discretion" to depart from legal prescriptions to the extent that Judge Swenson did. And if the appellate courts refuse to rectify the situation, then they too need to be swept clean. The political process is superior to judicial authority. But the citizens need to initiate action to ensure their rights.

So if you are spending time in reading the text on this website, consider the implications. It's too late to do anything about my situation but not too late to rescue others who may be similarly victimized by lawyers and court officials. Except for my initial appeal, the Court of Appeals did not help me and the Minnesota Supreme Court twice refused even to review my case. One bad experience does not necessarily lead to reform but several such experiences may.

Therefore, I would invite others with similar experiences to tell their stories as honestly and completely as they can in hopes that someone will be interested. Enough such testimony could prod public opinion to seek thorough-going reform of Minnesota courts. It could happen.

 

Final comment -

I have to believe that there are judges or former judges who live up to the title that the profession gives itself: honorable. Sad to say, I haven’t found them.

For further reading about problems with Minnesota courts, go to:

letter.html - This website cites personal experiences in court cases related to domestic abuse, divorce, foreclosure, and murder.

 

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