Hatch accused of threat to judge

08/17/2006

Attorney general denies 1-minute call mentioned media

BY PATRICK SWEENEY and TIM NELSON
Pioneer Press

A Ramsey County judge has accused Minnesota Attorney General Mike Hatch of improperly trying to influence the judge’s handling of two lawsuits.

“Mr. Hatch improperly contacted this court, accused it of improper conduct and attempted to influence it by apparently false threats to take the matter to the media,” Judge William H. Leary III wrote in a court order filed early this month.

Hatch, a Democratic-Farmer-Labor candidate for governor, denied there was anything improper about his short — 60-second or less — telephone call to Leary that stoked the judge’s ire.

“The guy is out of line. He is out of control,” Hatch said. He is seeking to have Leary removed from the two cases.

Bitter finger-pointing between a judge and the state’s top elected lawyer is rare. Two law school professors who teach legal ethics said that if Leary’s version of what happened is true, Hatch committed a serious violation of court rules.

While the Hatch-Leary clash is about what Hatch did as attorney general, fallout from the dispute is almost certain to become an issue in Hatch’s campaign for governor.

Hatch supporters are likely to see the case as proof of his willingness to challenge entrenched positions of power, including influential law firms and judges. Opponents will see the case as evidence that Hatch is a hothead, spoiling for a fight with anyone who disagrees with him.

The dispute between Hatch and Leary has evolved in a summer-long series of hearings and court filings. On Aug. 24, Gregg Johnson, the chief judge of Ramsey County District Court, is scheduled to consider Hatch’s motion to remove Leary from the two cases.

It is not clear how — or if — Johnson can resolve who said what in Hatch’s June 12 telephone call to Leary.

THE BACKGROUND

The dispute stems from two lawsuits Hatch filed in 2004: one against a New Jersey collection agency and a related law firm and another against Minneapolis-based Messerli & Kramer law firm. Both suits allege violations of consumer protection laws in debt collection activities.

Hatch complains that during mediation sessions aimed at reaching a settlement, Leary took positions and made statements that would make it impossible for him to remain neutral.

Three Hatch assistants submitted affidavits stating that Leary several times told them in mediation that he was sensitive to the “political’’ needs of Hatch’s office. The assistants said Leary urged them to accept a deal that Hatch could portray as a victory but that would have little practical benefit to the public.

When Hatch heard this, he phoned the judge at 4:21 p.m. June 12, about two hours after Leary said the mediation ended. Hatch made the call from the Flying Cloud Airport in Eden Prairie after he returned from a campaign trip. He later filed cell phone records to establish that the call lasted no more than a minute.

Whether mediation had ended is significant because negotiations in mediation sessions often involve private offers and counteroffers conveyed through the judge. Once mediation ends, court rules generally bar lawyers from having private conversations with trial judges without all parties present.

In an interview, Hatch said that when he phoned Leary he believed the mediation was still under way, and he wanted to assure Leary that the lawsuits were not politically motivated.

LEARY’S SIDE

Leary has declined to talk about the two cases because they are still pending.

Most of what has become public about Hatch’s phone call comes from a June 19 hearing in which Leary read into the court record a memorandum he wrote after receiving the call.

Hatch told Leary he was about to talk to people from Channel 4 News at 4:30 p.m. and they were interested in the Messerli & Kramer case, according to a transcript of the hearing.

“He repeated that Channel 4 was coming at 4:30, that he had to tell them something and he wanted me to know that he was going to say something before he said it — that he doesn’t do things behind people’s backs,” Leary said in that hearing.

Leary later concluded those statements about the television station were an attempt by Hatch to threaten him and improperly influence his handling of the lawsuits.

HATCH’S SIDE

Hatch denies that he ever threatened Leary.

“I have never threatened or in any manner indicated to Judge Leary that the media was involved in this manner,” Hatch said in an affidavit filed late last week in support of his motion to remove Leary from the case.

In an interview with the Pioneer Press three days after he signed the affidavit, Hatch was initially equivocal about what he said to Leary.

“I don’t know,” Hatch said when asked if he told Leary he was about to meet with news reporters, as Leary said he did. “I do know Channel 4 was interested in this matter. I think they ran a Messerli & Kramer story. I don’t know. But whether I had mentioned it to him or not, I do not know … I don’t think so.”

Moments later, in response to a follow-up question, Hatch said: “It was a one-minute call. I’m absolutely certain I did not mention WCCO, or any other media, in that call.”

In two subsequent interviews, Hatch repeatedly said his call to Leary lasted one minute or less and that he said nothing about the media.

“I called him thinking the mediation was on,” Hatch said of Leary. “He said it was over, and the call was terminated.”

In the last of the interviews with the Pioneer Press on Wednesday, Hatch said he planned to file another affidavit today in which he would reiterate that the call was brief and inconsequential.

He said he deserves credit for filing a suit against Messerli & Kramer, a law firm that has a big lobbying practice at the Capitol that includes representing an association of judges.

WHAT THE EXPERTS SAY

Two law school professors said Hatch’s phone call to Leary could have violated the court rule against “ex parte” — outside the presence of lawyers for the other side — communications. But if Hatch reasonably believed Leary was still trying to broker a settlement and was still meeting privately with lawyers for the two sides, the call might not have violated the rule, they said.

But if Hatch threatened to take his complaints to the media, he could be guilty of a serious violation of court rules, they said.

“It is highly inappropriate to attempt to intimidate the judge by veiled threats to attack the judge’s rulings in the press,” said Michael Stokes Paulsen, a professor and assistant dean at the University of Minnesota Law School.

Neil W. Hamilton, who teaches legal ethics at the University of St. Thomas School of Law and directs the Center for Ethical Leadership in the Professions at St. Thomas, gave a similar opinion.

“If the judge’s comments are true, both the threat of media attention and the fact the threat is false put the conduct substantially more across the line,” Hamilton said.

“If what the judge says is accurate, I would agree with them it’s an ethical violation,” Hatch said of the law professors. “But the judge is flat-out wrong.”