---
title: "Two Opinions, One Problem"
id: "55207"
type: "post"
slug: "two-opinions-one-problem"
published_at: "2025-09-09T01:10:57+00:00"
modified_at: "2026-04-22T10:03:45+00:00"
url: "https://justice-denied.org/two-opinions-one-problem/"
markdown_url: "https://justice-denied.org/two-opinions-one-problem.md"
excerpt: "Table of Contents 10mn read Two Opinions, One Problem Even under the law before the Minnesota Supreme Court’s September 3, 2025 decision in State v. Duol (A24-1754 ), the Court of Appeals’ opinion in Stevenson v. Stevenson (A25-0186 ) misfr…"
taxonomy_category:
  - "Craig Stevenson"
  - "Independent Judicial Investigation"
taxonomy_post_tag:
  - "Court of Appeals opinion Stevenson v Stevenson"
  - "due process violation Minnesota"
  - "judicial impartiality rule"
  - "judicial independent investigation"
  - "structural error extra-record fact-finding"
---
Table of Contents

10mn read

## Two Opinions, One Problem

Even under the law **before** the Minnesota Supreme Court’s September 3, 2025 decision in *State v. Duol* ([A24-1754](https://justice-denied.org/pdfviewer/state-v-duol-a22-0748-a24-1754/)
), the Court of Appeals’ opinion in *Stevenson v. Stevenson* ([A25-0186](https://justice-denied.org/pdfviewer/stevenson-v-stevenson-a25-0186/)
) misframed and minimized a due-process problem. It treated a judge’s **independent fact-gathering** as a mere “appearance” question, leaned on forfeiture, and downplayed what actually happened. *Duol* later states the rule plainly, but the core prohibition on judicial investigation and extra-record reliance already existed—and, at minimum, the conduct created an **appearance of impropriety**.

## What the Court of Appeals said in *Stevenson*

The panel affirmed the district court because it “discerned no appearance of impropriety.” It recast our challenge almost entirely as a **Rule 2.11(A)** recusal case about a law clerk’s historical connections, not as a due-process violation stemming from the judge’s **own** fact-gathering. It declined to choose a standard of review (saying that even under de novo review there was no error), discounted order-authorship metadata, invoked “small community” realities, and concluded a reasonable observer would not question impartiality.

And when confronted with the judge’s on-the-record recitation of clerk-employment dates that the court **itself** had assembled, the panel labeled the issue **forfeited** because no contemporaneous objection was made, adding that recusal motions are “unique” and give judges latitude to consider information about chambers conflicts.

## What actually happened in the district court (and why it matters)

At the recusal hearing, the court **took the motion under advisement**—and **then** injected “additional context,” including the clerk-employment dates, **after** argument had closed. That sequence matters. It placed judge-generated facts into the record **outside adversarial testing**, which is exactly what Minnesota law forbids.

It also matters **where those dates could have come from**. **[Judge Kevin Miller](https://mncourts.gov/about-the-courts/judicialdirectory/active-judicial-officers/07-district/kevin-m.-miller)** was **appointed in 2018**, years **after** the 2013–2016 clerk-employment period he recited “for the record.” He could not have known those dates from contemporaneous personal knowledge; they necessarily came from **outside the case record**. That is **independent investigation** by the tribunal, followed by **use** of those facts to frame—and effectively decide—the recusal dispute.

## Why the Court of Appeals’ framing was legally insufficient—even then

#### Minnesota already barred judicial investigation and extra-record reliance

Long before *Duol*, Minnesota law prohibited a judge from **seeking** or **relying on** extra-record facts to resolve contested matters. That is a **structural** problem because it compromises the impartiality of the tribunal. *Duol* did not invent this rule; it reaffirmed and clarified it.

#### You don’t cure a structural problem with “appearance” analysis

By collapsing everything into Rule 2.11(A)’s “appearance” question, the panel sidestepped the constitutional floor: a neutral adjudicator who decides **only** on the record created by the parties. The concern here was not merely who a clerk once worked for; it was that the judge **did his own factual research** and then **used it** to frame the dispute. That’s the due-process violation.

#### Forfeiture cannot launder a judge’s extra-record fact-finding

Treating this as a routine waiver problem misses the nature of the error. When the **judge** supplies extraneous facts—especially **after** taking the matter under advisement—the integrity of the decisionmaker is at stake. That is why the law treats judicial investigation as **structural**, not subject to harmless-error gloss or easy forfeiture.

#### The “small community” rationale is not a license to investigate

Familiarity on a small bench may explain overlaps; it does **not** authorize a judge to go outside the record, assemble facts, and then insert them into the case once argument has closed.

#### Metadata wasn’t the whole point

Even if order-authorship metadata were discounted, the **separate** and dispositive problem remains: the court **personally sourced, added, and used** facts no party presented, at a moment when those facts could not be tested.

Put differently: once the court **did the investigating**, impartiality was no longer a matter of “appearance”—under Minnesota’s **bright-line** rule, it was already a constitutional breach.

## Independent investigation is an appearance problem

Even if a court sidesteps the **due-process/structural-error** frame, the **appearance-of-impropriety** standard independently condemns what happened:

- **Rule anchors (plain English):**
  - Judges must **not investigate facts** on their own; they may consider only record evidence and properly noticed facts.
  - A judge must step aside whenever a **reasonable person** would question the judge’s impartiality.

- **Fact chain (objective and simple):**
  1. The judge **conducted an independent investigation** (sought facts outside the record).
  2. The judge **introduced those extra-record facts** into the case—after argument—when the parties could not test or rebut them.
  3. The judge **relied on those facts** to frame (and effectively resolve) the recusal dispute.

From an objective observer’s standpoint, those three steps are exactly what would cause a reasonable person to question impartiality—i.e., **appearance of impropriety**. You don’t need to prove actual bias or outcome influence; the **conduct itself** (the *act* of investigating and using the fruits) creates the appearance problem.

**Anticipating the usual pushbacks:**

- **“Forfeiture” (no objection):** The appearance test is **objective**. A judge’s decision to inject and use extra-record facts—especially **after** argument—does not become acceptable simply because a party did not object instantaneously. The appearance arises from the judge’s conduct itself.
- **“Small community” realities:** Community size may explain relationships; it does **not** authorize judicial investigation.
- **“Attenuated clerk connection / metadata not proof”:** Even if one discounts metadata or relationships, the **separate** appearance problem remains: the court personally **sourced**, **added**, and **used** facts no party presented.
- **“Unique recusal posture” latitude:** Recusal motions don’t create a carve-out. Judges can ask parties for facts or take judicial notice where appropriate—but not conduct their **own** investigation and then supply the answer.

## What *Duol* adds—and why it confirms the error here

On September 3, 2025, the Minnesota Supreme Court removed any lingering doubt: a judge’s **deliberate independent investigation** and **consideration** of extra-record facts violates the right to an impartial judge and is **structural error**. The remedy is **automatic reversal** and a **new hearing before a different judge**. The Court emphasized that the very **act** of seeking information outside the record transforms the court into an investigator and eliminates impartiality. That rule applies beyond trials (including postconviction hearings) and rests independently on the Minnesota Constitution.

**The guardrail, in the Court’s own words.** Minnesota has a **“bright-line rule that judges may not engage in independent investigations of facts in evidence.”** When a district judge crosses that line, the judge stops acting as a fair and impartial adjudicator. The Supreme Court emphasized it has **never recognized an exception**—because diluting the rule would compromise a bedrock principle: judges may not **seek or rely on extra-record knowledge** when deciding facts. This is precisely why *Duol* treats judicial investigation as **structural error** requiring automatic reversal and reassignment.

| Issue | Stevenson (Court of Appeals) | Duol (Supreme Court) |
| --- | --- | --- |
| Core lens | Frames as appearance-of-impropriety/recusal under Rule 2.11(A); downplays the judge’s independent fact-gathering. | Frames as due process: a judge’s independent investigation + reliance on extra-record facts violates the right to an impartial judge. |
| Independent investigation | Treats the judge’s “for the record” timeline as non-dispositive and, effectively, procedurally forfeited. | Reaffirms a bright-line rule: judges may not investigate facts on their own. The act of seeking extra-record information itself destroys impartiality. |
| Use of extra-record facts | No constitutional remedy; analysis focuses on whether a reasonable observer would see impropriety; finds none. | Once the court investigates and relies on extra-record facts, the error is structural; no harmless-error review. |
| Preservation / forfeiture | Labels the challenge to the judge’s inserted facts as “not preserved.” | Structural error is not cured by forfeiture logic; the problem is the tribunal’s integrity, not a party’s objection timing. |
| Remedy | Affirmed; no disqualification, no vacatur. | Automatic reversal/remand for a new hearing before a different judge. |
| Key rule statement | No explicit constitutional prohibition applied to the judge’s own investigation in this posture. | “Bright-line rule that judges may not engage in independent investigations of facts in evidence… We have never recognized an exception to this guardrail.” |
| Practical takeaway | Narrow, appearance-only lens + forfeiture = no relief even where the judge investigated and inserted facts post-argument. | If a judge investigates and uses extra-record facts, relief is required—because the act itself eliminates impartiality. |
| What this means for our case | Our treatment was minimized as “appearance” and procedurally waived. | Under the constitutional rule, what happened to us is exactly what triggers structural error and reassignment. |

**Bright-line, no exceptions.** Minnesota’s high court reaffirmed that judges **may not** investigate facts on their own. No carve-outs, no harmless-error fix. If a judge investigates and then relies on those extra-record facts, the error is **structural**—automatic reversal and a new hearing before a different judge.

## How we were treated vs. how we should have been treated

**How we were treated (*Stevenson*, Ct. App. July 28, 2025):**

- Lens: **appearance only**; the panel finds no appearance of impropriety.
- The judge’s independently gathered clerk-employment dates are recounted without constitutional consequence.
- Our “independent investigation” challenge is labeled **forfeited**; the panel invokes the “unique nature” of recusal motions.
- **Affirmed.**

**How we should have been treated (what Minnesota law already compelled):**

- Judges may **not** investigate or rely on **extra-record** facts; doing so is a **due-process** violation and a **structural error** requiring reversal and reassignment to a different judge for the contested proceeding.
- And **even if** one insists on viewing the problem only through the **appearance** lens, the conduct still fails: a reasonable observer would doubt impartiality when a judge investigates, inserts, and relies on extra-record facts—particularly **after** taking the matter under advisement.

## Bottom line

The Court of Appeals chose the narrowest lens and then faulted us for not objecting at the moment the judge recited his extra-record research—research the court added **after taking the matter under advisement**. That approach cannot be reconciled with Minnesota’s longstanding prohibition on judicial investigation and extra-record reliance. *Duol* didn’t change the destination; it put up the bright-line sign. Under either lens—**due process** or **appearance of impropriety**—our case crossed the line and should have been treated as a **structural** problem requiring reversal and reassignment.

**Constitutional bottom line.** The Minnesota Supreme Court has now underscored that “due process includes the right to an impartial judge” under **Minn. Const. art. I, § 7**, and clarified a **bright-line rule**: judges may not conduct independent factual investigations outside the record; doing so is **structural error** requiring automatic reversal. Critically, the Court grounded this rule **separately and independently** in the Minnesota Constitution, ensuring it stands on its own state-law footing (see **Michigan v. Long**, on independent state grounds). That’s the guardrail our case should have received. *(And as discussed above, the **appearance** problem arises from the very **act** of seeking information outside the record—conduct that transforms the court into an investigator and erodes any vestige of impartiality.)*

For additional background and AI-assisted analysis of independent judicial investigations, visit our [Independent Investigations](https://justice-denied.org/independent-investigations/)
 page.

🤖This article was authored by Justice-Denied.org with the assistance of artificial intelligence.

🔗More on Minnesota judicial ethics and court reform: [justice-denied.org](https://justice-denied.org/)

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