Minnesota’s Supreme Court has long held that when a judge independently investigates or considers facts outside the record, the resulting violation is structural error requiring automatic reversal. That rule, established in State v. Dorsey and reaffirmed repeatedly over two decades, is one of the clearest lines in Minnesota’s due-process jurisprudence.
Yet in two 2025 decisions—State v. Jones and Stevenson v. Stevenson—the Minnesota Court of Appeals confronted nearly identical judicial conduct involving extra-record fact-finding. The outcomes were the same: no structural error found, and no relief granted.
Even more noteworthy: Judge Tracy M. Smith sat on both panels.
1. The Rule: Dorsey (2005) and Its Reaffirmation in Duol (2025)
In State v. Dorsey (2005), the Minnesota Supreme Court established a bright-line rule:
- A judge may not independently investigate facts outside the record.
- A judge who does so becomes a witness in their own proceeding.
- This is structural error, requiring automatic reversal.
- No prejudice showing is required.
Twenty years later, in September 2025, the Supreme Court issued State v. Duol, reaffirming the rule with unmistakable clarity:
A district court judge’s deliberate independent investigation and consideration of extra-record facts violates the constitutional right to an impartial judge and constitutes structural error requiring automatic reversal.
This standard is absolute—not discretionary, contextual, or optional.
2. State v. Jones (Oct. 13, 2025): Court Cites Dorsey and Duol and Recites the Structural-Error Rule—but Declines to Apply It
In State v. Jones, the district court faced a defendant who failed to appear for trial. To determine whether the absence was voluntary, the judge:
- Called a witness under Rule 614,
- Reviewed MNCIS criminal-history records,
- Relied on past warrant and court-system information not introduced by either party.
These were extra-record facts, obtained through the judge’s own research.
Importantly, the Court of Appeals:
- Cited Dorsey,
- Cited Duol,
- Explicitly acknowledged that structural error requires automatic reversal.
Yet the panel concluded:
The district court’s investigation did not violate Jones’s right to an impartial judge.
Rather than applying the structural-error framework, the panel characterized the judge’s conduct as part of a permissible Finnegan inquiry—even though Finnegan does not authorize judicial review of MNCIS records or other extra-record materials.
Thus, despite citing Dorsey and Duol, the Court of Appeals:
- Reframed the judge’s actions as required by procedural necessity,
- Did not apply strict structural-error analysis,
- Affirmed the conviction.
3. Stevenson v. Stevenson (Jul. 28, 2025): Extra-Record Facts Again—But No Appearance of Impropriety
And the Court of Appeals Forfeits the Structural-Error Argument in a Footnote
Three months earlier, the Court of Appeals confronted a similar issue in Stevenson v. Stevenson.
During a recusal hearing, Judge Miller independently researched and introduced extra-record employment information about his law clerk to rebut the Stevensons’ motion:
“Mr. Morrison started with Judge Mark Hansen in November 2013 and became Judge Benson’s clerk in September 2016.”
These statements:
- Were not provided by either party,
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Were not in the record,
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Were obtained by the judge independently,
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And were used to undermine the recusal motion.
Under Dorsey, this conduct falls squarely within the definition of structural error.
However, unlike Jones:
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Duol had not yet been decided (it would be released five weeks later).
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The panel did not cite Dorsey.
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The panel conducted no structural-error analysis whatsoever.
Even more extraordinary—the Court of Appeals declared the independent-investigation argument forfeited in a footnote, despite the fact that:
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Appellants raised it repeatedly,
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Provided sworn declarations,
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Submitted supporting evidence,
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And made it the central basis of their recusal and vacatur motion appeal.
To our knowledge, this is the first time in Minnesota appellate history that a structural-error / independent-judicial-investigation argument has ever been deemed forfeited. Structural error is never subject to forfeiture; it is one of the uniquely preserved categories of constitutional violations.
Yet the panel disposed of the argument—without analysis, and without acknowledging that structural error cannot be forfeited.
Instead, the opinion concluded:
“We discern no appearance of impropriety.”
Judge Miller’s extra-record assertions were treated as benign contextual details—not the judicial fact-finding expressly prohibited by Dorsey.
And once again, the result was affirmance.
4. Same Conduct — Same Outcomes
| Judicial Conduct | Jones | Stevenson |
|---|---|---|
| Judge independently investigates facts? | Yes | Yes |
| Facts obtained outside the record? | Yes | Yes |
| Facts introduced into the proceeding? | Yes | Yes |
| Structural-error analysis applied? | No (despite citing Dorsey/Duol) | No (Dorsey cited nowhere; Duol not yet decided) |
| Outcome | Affirmed | Affirmed |
| Panel included Judge Tracy Smith? | Yes | Yes |
Across both cases:
- The judge conducted extra-record fact-finding.
- The judge used those facts to resolve core issues (voluntary absence / recusal).
- Supreme Court precedent required structural‐error analysis (Dorsey then; Duol later confirmed it).
- The Court of Appeals declined to apply that analysis.
- Relief was denied.
And in both cases—Judge Tracy M. Smith sat on the panel.
5. Why Judge Tracy Smith’s Presence on Both Panels Matters
A. Consistent Outcomes Across Similar Violations
When the same judge participates in two cases involving the same type of constitutional violation and reaches the same outcome—finding no error despite Supreme Court guidance to the contrary—it strongly suggests:
- A consistent interpretive stance at odds with structural-error doctrine,
- A tendency to reclassify extra-record judicial fact-finding as permissible,
- A reluctance to find any impropriety in a judge’s conduct regardless of context.
B. Precedential Treatment
In both cases:
- The panel reframed the conduct as innocuous or procedurally necessary,
- The structural-error framework was not applied,
- Extra-record facts were minimized rather than treated as violations.
In Stevenson, the omission of Dorsey is striking, given the similarity between Judge Miller’s actions and the judicial behaviors condemned in that case.
In Jones, although Dorsey and Duol were cited, the panel did not apply their holdings.
C. Impact on Public Confidence
Structural-error doctrine exists to protect the integrity of the judiciary. When appellate courts:
- Decline to apply the governing rule (Jones),
- Ignore the rule entirely (Stevenson),
- And the same judge participates in both panels,
public confidence in neutral, predictable appellate review is weakened.
6. Why This Matters
The right to an impartial judge should never depend on:
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Whether the case is civil or criminal,
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Whether the litigant is a defendant or a plaintiff,
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Which Court of Appeals judge is assigned to the panel.
Yet in 2025, Minnesota’s Court of Appeals treated extra-record judicial fact-finding in Jones and Stevenson as non-violations, even as the Supreme Court’s existing precedent (Dorsey) and later decision (Duol) make clear that this conduct constitutes structural error.
In Stevenson, the problem was compounded by a footnote “forfeiture” ruling never before seen in Minnesota appellate history.
The contrast is stark.
The implications are troubling.
And the public—especially those directly affected—deserve a judiciary that applies its own constitutional rules consistently and transparently.
This blog post was written with the assistance of Artificial Intelligence (AI).
For additional background and AI-assisted analysis of judicial independent investigations, visit our Independent Investigations page.
🔗 For more on judicial ethics and court reform in Minnesota, visit https://justice-denied.org.