Introduction
A judicial-conduct rule has little force if the oversight system will not enforce it against members of the judiciary. On October 18, 2025, I filed a formal complaint with the Minnesota Board on Judicial Standards alleging that four judges relied on extra-record facts and conducted or upheld independent judicial fact-finding in Stevenson v. Stevenson.
The complaint names Judge Kevin M. Miller and Minnesota Court of Appeals Judges Jennifer L. Frisch, Randall J. Slieter, and Tracy M. Smith. It asks whether Rule 2.9(C) and Minnesota’s structural-error decisions will be enforced consistently when the challenged conduct appears in this case.
The Core Allegation: Judges Became Witnesses in Their Own Cases
At the center of the filing is Judge Miller’s insertion of facts from his own independent investigation into the employment history of his law clerk, James Morrison — information neither party introduced, and which he later repeated in his written order denying recusal. The judge cited 2013 and 2016 employment dates despite joining the bench only in 2018, proving the information came from outside the record. He never identified a source or issued a notice of judicial fact-finding. This, the complaint explains, is precisely what Rule 2.9(C) forbids: “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 Appellate “Forfeiture” That Contradicts the Constitution
When the Stevenson appeal reached the Court of Appeals, the panel acknowledged in Footnote 3 that appellants alleged Judge Miller “relied on his own investigation and resulting findings of fact.” Despite that acknowledgement, the panel deemed the issue forfeited because no objection was made at the hearing. That rationale directly conflicts with the Minnesota Supreme Court’s holdings in State v. Dorsey (2005) and State v. Duol (2025), both of which establish that a judge’s independent investigation of extra-record facts constitutes structural constitutional error—a defect that is not subject to waiver or forfeiture. It also contradicts other Court of Appeals opinions such as State v. Scudder and State v. Bowlby, where no contemporaneous objection was required to preserve similar issues.
In reviewing Minnesota’s appellate record, I could locate only a single instance where an independent-investigation claim was treated as forfeited: this case. The panel’s description of the recusal motion as having a “unique nature” thus served not to distinguish it, but to normalize conduct that Minnesota’s highest court defines as constitutionally impermissible.
“We have never recognized an exception to this guardrail.” — State v. Duol, Minn. Supreme Court (2025)
Ignored Warnings: The Board’s Own Advisory Opinion Came First
Perhaps most striking, the BJS itself had already published a formal advisory opinion — BJS Opinion 2025-1 (March 21, 2025) — warning judges not to conduct independent investigations and reminding them that recusal duties apply “regardless of whether a motion to disqualify is filed.” That same opinion quotes the U.S. Supreme Court’s observation in Caperton v. A.T. Massey Coal Co. (2009):
“Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution.”
The irony, as the complaint notes, is that Stevenson represents the very failure Caperton warned about: judges ignored the Code’s ethical safeguards, forcing a constitutional confrontation that never should have been necessary.
History Shows the Board Has Disciplined Judges for the Same Conduct
This is not an uncharted ethical question. In its July 2025 Private Discipline Summaries, the Minnesota Board on Judicial Standards reported several cases where judges were disciplined for independent investigations and ex parte communications—the same type of conduct now at issue in Stevenson v. Stevenson.
- 2010-08: A judge directed court staff to search online for a video related to a pending case and watched it before hearing from either party. The Board found this violated the prohibitions on independent investigation and ex parte communication and issued a private admonition.
- 2014-64: A judge independently interviewed a child witness outside the presence of counsel, again breaching the rules against ex parte contact and independent fact-finding.
- 2024-16: The Board cautioned that even a short conversation or brief internet search “can unknowingly influence a judge’s decision,” emphasizing that such actions undermine impartiality.
These examples show that the Board has long treated this behavior as misconduct under the Minnesota Code of Judicial Conduct, even when the consequences were minor. The difference in Stevenson v. Stevenson is that the same conduct occurred on the record, acknowledged by the judge himself, yet was later ratified by an appellate court. The Board now faces an unavoidable question: why has identical conduct drawn discipline in prior cases, but not here?
Evidence That Was Silenced
Eight days after the recusal hearing, Craig Stevenson filed a sworn declaration documenting public-record evidence from MCRO showing that Clerk Morrison continued to work with retired Judge Mark Hansen well beyond the dates Judge Miller asserted, including holding hundreds of hearings as a senior judge until December 6, 2019. Those documents — filed before Miller’s order issued — directly contradicted his self-sourced “facts,” yet the order omitted them entirely. The Court of Appeals refused to consider the declaration, cementing a precedent that treats judicial self-investigation and the use of extra-record facts as permissible.
Selective Metadata and the Disappearing Author
Following the conflict disclosure, orders from Judge Miller’s chambers suddenly stopped showing individual law-clerk authorship. Documents that once listed “James Morrison” as the author now used the generic label “7th Judicial District.” No other clerk in Otter Tail County was anonymized in this way. The pattern suggested deliberate concealment of Morrison’s continued involvement — raising the same transparency issues the complaint says the Code was meant to prevent.
Independent Fact-Finding Crosses a Constitutional Line
Judicial independence depends on adversarial truth-testing — the simple premise that judges decide based on evidence presented by the parties, not information gathered privately. When courts begin to “verify,” “research,” or “contextualize” facts on their own, they cross a constitutional line. The Minnesota Supreme Court has now reaffirmed that line in Duol:
“A district court judge’s deliberate independent investigation and consideration of extra-record facts … violates the petitioner’s constitutional right to an impartial judge. Such a violation is a structural error requiring automatic reversal.”
Yet the Stevenson appellate panel treated that same conduct as harmless and forfeited — creating a constitutional double standard inside Minnesota’s judiciary.
The Broader Question
If Minnesota’s own judges can disregard both the Code of Judicial Conduct and the BJS’s formal advisory opinion without consequence, what meaning does “judicial accountability” still hold? As the complaint concludes, the Board must now choose whether to enforce the ethical guardrails it wrote — or to confirm that litigants seeking impartial justice must rely solely on constitutional arguments the Code was designed to make unnecessary.
I will update this site when a final decision has been reached by the Board.
Timeline:
October 18, 2025 (Full complaint): “Judicial Misconduct – Independent Investigation, Use of Extra-Record Facts, and Selective Fact-Finding in Stevenson v. Stevenson and Related Proceedings.”
October 31, 2025: Blanket denial by MN Board on Judicial Standards.
November 5, 2025 (Delivered November 10, 2025): Letter for reconsideration of complaint denial.
Related Analysis
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