The Fairness Files

Why Fairness Deserves Its Own Series

Justice-Denied.org already has three related series.

Distorting the Law examines whether legal authorities are selectively quoted, narrowed, reframed, or applied outside their proper context.

The Candor Files examines whether statements made to a tribunal fairly match the evidence, the record, and the law.

The Privacy Files examines what happens when confidential records, medical information, genetic data, and other sensitive materials are compelled into litigation and then disseminated, stored, used, redesignated, or exposed beyond what the litigation allowed.

The Fairness Files addresses a different but related question:

Were the rules, standards, protections, and opportunities of the judicial process applied fairly and consistently?

That question can arise at every stage of a case.

It can arise when one party receives discovery while another is denied comparable access. It can arise when one side is permitted to develop its evidence while the other is told the evidence is unnecessary. It can arise when one party’s disputed version of events is treated as a factual question, while another party’s disputed evidence is resolved against it as a matter of law.

It can arise when credibility and intent are preserved for a jury in one case but decided by the court in another. It can arise when procedural deadlines are strictly enforced for one litigant but relaxed for another. It can arise when the same legal doctrine is interpreted broadly in one setting and narrowly in another.

None of those differences automatically proves judicial bias or misconduct. But they can raise legitimate questions about consistency, neutrality, and whether the same judicial method was applied to everyone.

That is why fairness deserves its own series.

Fairness Is More Than Reaching a Legally Defensible Result

A judicial decision may be explained through legal terminology and still raise questions about fairness.

Courts exercise judgment. They interpret statutes, weigh procedural considerations, decide questions of law, manage evidence, enforce deadlines, and determine whether a case should proceed to trial. Many of those decisions involve discretion.

But discretion is not the absence of standards.

Judicial discretion must remain grounded in the law, the record, and the procedural rights of the parties. It should not depend on which party is asking, whether a litigant is popular, whether the allegations are comfortable, or whether the judge personally approves of the claim or defense.

Fairness therefore requires more than identifying some legal rationale that could support an outcome. It requires a process that is recognizable as neutral.

The parties and the public should be able to see that:

• the court identified the governing standard;
• the court applied that standard to the record actually presented;
• material disputes were treated according to the proper procedural posture;
• both sides were given a meaningful opportunity to be heard;
• the court did not assume facts that were not established;
• the court did not resolve credibility or competing inferences where those matters belonged to a jury; and
• similar issues were addressed through a reasonably consistent judicial method.

A result may favor one side. Fairness does not require a tie.

But fairness does require that the process not be tilted.

The Core Rule: Impartiality and Fairness

The starting point is the Minnesota Code of Judicial Conduct.

Rule 2.2, titled “Impartiality and Fairness,” provides:

“A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”

The comments explain what that obligation requires:

“To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.”

Those words matter.

Objectivity requires a judge to evaluate the record without favoring one party’s narrative merely because it is familiar, convenient, or more readily accepted. Open-mindedness requires a judge to remain willing to consider evidence and argument before deciding what the record means.

The rule also recognizes that judges can make good-faith errors of fact or law. A mistaken ruling is not automatically an ethical violation. An appellate reversal does not necessarily establish bias. Reasonable judges may disagree about difficult legal questions.

But that qualification does not make the underlying duty optional.

The duty remains: uphold and apply the law, remain objective and open-minded, and perform judicial responsibilities fairly and impartially.

The Fairness Files will use that duty as a central reference point.

Fairness and Public Confidence

Judicial fairness is not limited to a judge’s private belief that the judge acted impartially. The judicial system must also preserve public confidence in the fairness of its decisions.

Rule 1.2 requires a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. It also requires judges to avoid impropriety and the appearance of impropriety.

The comments explain that the appearance test is objective. The question is whether conduct would create in reasonable minds a perception that the judge’s impartiality, integrity, temperament, or fitness has been compromised.

Minnesota Supreme Court decisions reinforce that principle.

In Greer v. State, 673 N.W.2d 151, 155 (Minn. 2004), the court described impartiality as “the very foundation of the American judicial system.”

In Pederson v. State, 649 N.W.2d 161, 164–65 (Minn. 2002), the court emphasized that judges should act in a manner that assures parties they have no reason to believe their case is not being fairly judged.

The United States Supreme Court has expressed the same foundational principle. In In re Murchison, 349 U.S. 133, 136 (1955), the Court stated:

“A fair trial in a fair tribunal is a basic requirement of due process.”

In Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–87 (2009), the Court explained that due process protects not only against proven actual bias in extraordinary circumstances, but also against an objectively intolerable probability of bias.

Most disagreements about judicial rulings do not rise to that constitutional level. The constitutional standard is a floor, not a label to be attached to every adverse decision.

But the cases establish why impartiality matters so deeply. Courts exercise the authority of the state. Their decisions can dismiss claims, impose liability, restrict access to evidence, expose private records, award sanctions, determine credibility, and permanently alter the rights and reputations of the people before them.

The legitimacy of that authority depends on public confidence that the court is applying the law and process impartially.

The Right to Be Heard

Fairness also requires more than allowing a party to file documents or appear at a hearing.

Rule 2.6(A) provides:

“A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

The comments call the right to be heard “an essential component of a fair and impartial system of justice.” They also explain that substantive rights can be protected only when procedures protecting the right to be heard are observed.

That distinction is important.

A party has not necessarily received a meaningful opportunity to be heard merely because the party was permitted to speak. The court must consider the issue through the procedure the law requires.

Depending on the circumstances, that may require:

• adequate notice of the issue the court intends to decide;
• a reasonable opportunity to respond to opposing evidence or argument;
• sufficient discovery to obtain facts essential to a claim or defense;
• an evidentiary hearing when credibility or disputed facts cannot properly be resolved on written submissions;
• consideration of the material evidence presented by both sides; and
• a decision based on the issues and record the parties were actually given an opportunity to address.

Procedural fairness is not separate from substantive justice. It is the mechanism through which substantive rights are protected.

When a party is technically allowed to participate but the court does not meaningfully engage with the evidence or issue presented, the public may reasonably ask whether the right to be heard was real or merely formal.

Judges Must Decide From the Record

The adversarial system assigns different roles to judges and parties.

The parties investigate, gather evidence, retain experts, examine witnesses, make legal arguments, and challenge the opposing side’s presentation. The judge remains neutral, rules on the issues presented, and decides the matter from the admissible evidence and law.

Rule 2.9(C) draws a clear boundary:

“A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.”

The rule expressly extends to information available through electronic media.

The Minnesota Supreme Court applied that principle in State v. Dorsey, 701 N.W.2d 238 (Minn. 2005). There, a judge independently investigated a disputed factual assertion made by a witness and used the resulting information in evaluating the case.

The Supreme Court held that an impartial adjudicative process requires conclusions to be based on facts in evidence and prohibits the factfinder from reaching conclusions based on evidence sought or obtained beyond what was presented in court.

In State v. Duol, 25 N.W.3d 135 (Minn. 2025), the Minnesota Supreme Court reaffirmed the bright-line rule against deliberate judicial investigation and consideration of extra-record facts. The court concluded that the violation deprived the petitioner of an impartial judge and constituted structural error requiring a new proceeding.

Dorsey and Duol arose in criminal and postconviction proceedings. But the ethical rule they enforce applies to judicial conduct generally: judges must decide cases from the record, not from private investigation, undisclosed information, assumption, or personal knowledge of disputed facts.

This principle is central to fairness because parties can challenge evidence that appears in the record. They can test its source, reliability, context, and meaning. They cannot meaningfully challenge information or assumptions they do not know the court is considering.

Fairness requires an open record and a neutral decision-maker.

Summary Judgment and the Role of the Jury

One of the most important fairness questions in civil litigation is whether disputed facts are preserved for trial or resolved by the court before a jury can hear them.

Minnesota Rule of Civil Procedure 56.01 allows summary judgment only when the moving party shows that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law.

Summary judgment serves an important purpose. A case should not proceed to trial when no genuine factual dispute exists and the law requires a particular result.

But summary judgment is not a substitute for trial when the outcome depends on disputed facts, credibility, intent, context, or competing reasonable inferences.

In DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997), the Minnesota Supreme Court explained that the court’s function at summary judgment is not to decide factual issues. It is to determine whether genuine factual issues exist.

The evidence must be viewed in the light most favorable to the party opposing summary judgment, and that party receives the benefit of reasonable inferences supported by the record. The court does not choose which witness is more believable, decide which competing explanation is more persuasive, or weigh conflicting evidence as it would after a trial.

Those safeguards protect the jury’s role.

They also create an important basis for comparison. When one case is allowed to proceed because intent, credibility, meaning, or causation are considered factual issues, while another case is dismissed after the court resolves comparable disputes, it is fair to ask why.

The answer may be found in meaningful differences between the cases. But those differences should be identifiable in the record and in the court’s reasoning.

A comparison becomes especially important when:

• the same judge is involved;
• the cases involve related claims or defenses;
• the same procedural standard applies;
• similar factual disputes receive different treatment; or
• the court describes the jury’s role differently from one case to another.

The question is not whether every case should survive summary judgment.

The question is whether the summary-judgment standard was applied consistently.

Consistency Does Not Mean Identical Outcomes

Comparative analysis must be approached carefully.

No two lawsuits are identical. Different parties present different evidence. Lawyers frame motions differently. Discovery records vary. One case may contain admissible evidence that another lacks. One claim may fail because of a legal defect that is absent from another.

A difference in outcome, standing alone, proves very little.

That is why The Fairness Files will focus on method rather than numerical comparisons between winners and losers.

The relevant questions will include:

• What legal standard did the court identify?
• What procedural posture governed the decision?
• What evidence and factual disputes were before the court?
• Which inferences were drawn, and in whose favor?
• Did the court resolve credibility, intent, meaning, or motive?
• Were comparable disputes preserved for trial elsewhere?
• Did the court explain why a different approach was justified?

Consistency does not require a court to pretend that different cases are the same.

It requires the court to apply the same governing principles honestly to the differences that actually exist.

Fairness Is Visible in the Details

Questions of judicial fairness are often revealed not by one dramatic ruling, but by a pattern of smaller decisions.

A discovery request may be described as unnecessary for one party but essential for another. A missed deadline may be fatal in one context but excused in another. One side’s circumstantial evidence may be treated as sufficient to create a factual dispute, while comparable evidence from the other side is dismissed as speculation.

A court may insist that one litigant identify precise evidentiary support while accepting generalized assertions from an opponent. It may apply context broadly when evaluating one accusation but narrowly when evaluating another. It may characterize a question as one for the jury in one proceeding and a question of law in another.

Any one of those differences may have an explanation.

But when the differences accumulate, the method deserves examination.

Fairness is not an abstract ideal existing somewhere above the record. It is visible in rulings on discovery, evidence, procedure, summary judgment, trial management, credibility, sanctions, confidentiality, recusal, and the right to be heard.

That is where this series will look.