During oral argument in our appeal, Judge Tracy Smith asked:
“And how do those facts get into the record if they’re relevant to the decision on, you know, a motion that someone has brought?”
On the surface, it might sound like an innocent procedural question. But beneath it lies a troubling implication: that if facts are “relevant” to deciding a motion, a judge can — or must — find a way to get them into the record, even if that means conducting their own investigation.
Here’s the problem: the law is crystal clear that a judge cannot perform their own independent investigation into disputed facts, and cannot use those extra-record facts in deciding a case. That is not a minor procedural rule—it’s a bedrock safeguard against judicial bias and abuse of power.
What the Law Actually Says
Judges in Minnesota — like judges everywhere in the U.S. — are prohibited from conducting independent investigations into disputed facts in a case. This principle is not just a nicety; it’s baked into judicial ethics rules and due process protections. The Minnesota Code of Judicial Conduct, Rule 2.9(C), states clearly:
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.
If evidence is missing, the proper remedy is for a party to bring it forward through the adversarial process — not for the judge to go fact-hunting.
Why Judge Smith’s Question Raises Red Flags
Judge Smith’s question sidesteps the obvious: there is already a lawful method for getting relevant facts into the record — it’s called presenting evidence. That’s the parties’ job, not the judge’s.
By asking “how do those facts get into the record” in this context, she risks framing judicial misconduct as a procedural necessity — as though the only practical choice is for a judge to fill in the gaps themselves. This is dangerous because:
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It normalizes a serious breach of judicial ethics.
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It erases the fact that when a judge does this, it taints the ruling with extra-record material.
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It shifts blame to the parties for not somehow accommodating an unlawful act.
The Real Problem in Our Case
In our case, Judge Miller didn’t just passively receive improperly presented information — he went out and found it. Then he used it as the basis for rejecting our motion to recuse, while ignoring contradictory record evidence we provided.
The Court of Appeals acknowledged that Judge Miller did this — but instead of addressing whether it violated judicial ethics, they declared the issue “forfeited” because we supposedly didn’t object in the right way. The truth is, we did object, through sworn declarations and motion briefing, but the appellate court sidestepped that reality.
Why This Matters for Every Litigant
If an appellate court is willing to treat judicial fact-finding outside the record as an understandable or necessary action — and then excuse it on a technicality — it sends a chilling message: Your judge can become an investigator, a witness, and a fact-finder all at once, and there’s nothing you can do about it.
This is not a procedural quirk. It’s a collapse of the most basic safeguard in our justice system: the right to have your case decided only on the evidence properly before the court. If judges can justify their own fact-finding by framing it as necessary to get facts into the record, then the prohibition against independent investigation becomes meaningless. And if appellate courts reinforce that by shifting the blame to litigants for not stopping it in real time, then the rule is dead in practice.
When the law says No but a judge says How else?, the rule of law is at risk—and so is every litigant’s right to a fair hearing.
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.