Introduction
One of the most basic rules of judging is simple: a judge cannot go outside the record to investigate facts. The Minnesota Code of Judicial Conduct makes this clear, and appellate courts have repeated it time and time again: decisions must be based on the evidence the parties present, not on a judge’s independent research, assumptions, or courthouse gossip.
But what happens when the same appellate court applies that rule strictly in one case, and completely looks the other way in another?
The Bowlby Case: Appellate Judges Cry Foul
On April 3, 2025, during oral arguments in State v. Bowlby, the Minnesota Court of Appeals judges were openly troubled when it appeared that a district court judge had used Google Maps and perhaps even unrelated case files to add facts into the record.
Judge Reyes reminded counsel:
“The rules of judicial conduct are pretty clear. We are limited to the record before us both on appeal and the district court. So… it’s a little disconcerting to see that there may be one, if not two, instances of the district court… maybe using Google Maps.”
Judge Cochran went even further:
“I’m not aware that that is permissible under the code of judicial conduct… If you are relying on facts from another case, that’s not, that hasn’t been presented by either party, I think there’s a real concern there about going outside of the record.”
The attorney for Mr. Bowlby conceded the point: this was extra-record fact-gathering, and it was wrong.
The takeaway was clear: everyone in the courtroom recognized that what happened in Bowlby was judicial misconduct, and the resulting opinion reflected that reality.
The Stevenson Case: The Rule Disappears
Now compare that to what happened in our case.
Judge Kevin Miller conducted his own independent investigation into his law clerk’s employment history with Judge Hansen and specifically placed those facts into the record at the end of oral argument. He assembled and relied on those extra-record facts to deny our motion to recuse and vacate his orders. To make matters worse, he selectively ignored contradictory facts that we had properly placed into the record, which itself is a violation of Skarsten v. Dairyland Ins. Co. that was totally ignored by the Minnesota Court of Appeals:
In Skarsten, we reversed summary judgment for the insurer based on the resident-relative provision and cautioned “a court must not rely on selected facts in order to justify a conclusion.” 381 N.W.2d at 19. Here, the district court’s summary-judgment decision rested on “selected facts” because it ignored relevant evidence favorable to appellants’ position, drew inferences unfavorable to appellants, and failed to view the record evidence in a light favorable to appellants. Progressive Ins. v. Abel, No. A21-1267, 2022 WL 2124869, at *5 (Minn. Ct. App. June 13, 2022)
We raised the independent investigation issue repeatedly in sworn declarations, oral argument, and our appellate briefs. The Minnesota Court of Appeals acknowledged what Judge Miller had done. But instead of applying the same judicial standards they recognized in Bowlby, they shrugged it off. Their reasoning? They claimed we “forfeited” the issue because we didn’t object the right way at the right time.
So in Bowlby, extra-record judicial investigation was “disconcerting” and unethical. In Stevenson, it was excused away as a mere preservation problem.
The Double Standard
This contradiction should trouble anyone who believes in equal justice:
- In Bowlby: Judicial misconduct was recognized as a violation of ethics.
- In Stevenson: The same kind of misconduct was excused, and the litigants were blamed for not preserving the issue – the only time in Minnesota appellate history that this has been done regarding this particular issue. (See more information [Independent Investigations – By the Numbers], [When the Law Says No, But a Judge Says How Else?], [When Judges Investigate on Their Own], and [Forfeiture That Wasn’t].)
The result is a dangerous precedent: whether judicial misconduct matters depends not on the law, but on which case you’re in.
Bowlby’s Rule—and Stevenson’s Exception
The judiciary is supposed to be consistent. Rules aren’t meant to bend for some cases and not for others. If Minnesota appellate judges know that judges cannot conduct independent investigations — and they plainly said so in Bowlby — then why was our case treated differently?
By normalizing misconduct in one case while condemning it in another, the courts are sending a chilling message: the rule of law is flexible, and fairness is optional.
✨ Justice should not depend on selective enforcement of judicial ethics. Either the rules apply to all judges in all cases — or they mean nothing at all.
For additional background and AI-assisted analysis of independent judicial investigations, visit our page.
