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STATE OF MINNESOTA IN SUPREME COURT A10-1746

Original Jurisdiction

Per Curiam Concurring, Page, J. Filed: November 16, 2011 Office of Appellate Courts

Inquiry into the Conduct of the Honorable Patricia Kerr Karasov. ________________________

Douglas A. Kelley, Steven E. Wolter, Kelley, Wolter & Scott, P.A., Minneapolis, Minnesota, for the Board on Judicial Standards. David F. Herr, Maslon, Edelman, Borman & Brand, LLP, Minneapolis, Minnesota, for the Honorable Patricia Kerr Karasov. ________________________ SYLLABUS Censure and suspension from judicial duties for 6 months without pay is warranted for a judge who violated the Rules of the Code of Judicial Conduct and the Minnesota Constitution by failing to reside within her judicial district during her continuance in office and by failing to cooperate and be candid and honest with respect to the Board on Judicial Standards' investigation of her residency status. OPINION PER CURIAM. This proceeding arises from a formal complaint filed by the Minnesota Board on Judicial Standards against the Honorable Patricia Kerr Karasov, Judge of District Court, Hennepin County, alleging violations of the Rules of the Code of Judicial Conduct and 1

the Minnesota Constitution. Following a hearing, a three-member panel appointed by this court found that Judge Karasov failed to reside within her judicial district from July 1, 2009, through September 30, 2009, and failed to cooperate and be candid and honest with respect to the Board's investigation of her residency status, in violation of Rules 1.1, 1.2, and 2.16 of the Code of Judicial Conduct and Article VI, Section 4, of the Minnesota Constitution. The panel recommended that Judge Karasov be censured and suspended from judicial office for 90 days without pay. Judge Karasov appealed the panel's

findings, contending the Board failed to prove that she committed judicial misconduct by clear and convincing evidence and that she was denied due process of law by irregularities in the proceedings and errors of law. Both Judge Karasov and the Board appealed the panel's recommended sanctions. We conclude that the Board has proven by clear and convincing evidence that Judge Karasov failed to reside within her judicial district during her continuance in office and that she failed to cooperate and be candid and honest with respect to the Board's investigation of her residency status, in violation of Rules 1.1, 1.2, and 2.16 of the Code of Judicial Conduct and Article VI, Section 4, of the Minnesota Constitution. We further conclude that Judge Karasov's due process claims lack merit. Finally, we conclude that the appropriate judicial discipline is censure and suspension from judicial duties for 6 months without pay. Procedural Background On August 24, 2010, the Board filed a formal complaint against Judge Karasov, alleging that she had violated the Minnesota Constitution and Rules 1.1, 1.2, and 2.16 of 2

the Code of Judicial Conduct. The formal complaint alleged that Judge Karasov failed to reside in the Fourth Judicial District throughout her entire term of judicial office by residing at her home in Chisago City beginning in April 2008. The formal complaint also alleged that Judge Karasov failed to be fully cooperative, candid, and honest with the Board and its investigators.1 We appointed a three-member fact-finding panel to conduct a hearing on the Board's allegations. Hearing Before the Three-Member Panel A hearing was held before the three-member panel for 3 days in January 2011. The testimony at this hearing, as well as the exhibits admitted into evidence, establish the following. Judge Karasov is a district court judge in the Fourth Judicial District, a position to which she was elected in 1994, and reelected in 2000 and 2006.

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The Board also alleged that Judge Karasov violated Rules 2.1 and 3.1(C) of the Code of Judicial Conduct. Rule 2.1 states, "[t]he duties of judicial office, as prescribed by law, shall take precedence over all of a judge's personal and extrajudicial activities," while Rule 3.1(C) states, "a judge shall not . . . participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality." The panel did not make any findings or conclusions regarding the Board's allegation of these rule violations, and so we do not discuss these allegations further. With respect to the Board's noncooperation allegation, the formal complaint alleged that Judge Karasov failed to sign authorization forms giving the Board access to information from her credit card companies in a timely manner. After Judge Karasov's former counsel testified before the panel that any delay in providing these signed authorization forms to the Board was attributable to his law firm, the Board withdrew its allegation related to the authorization forms. The formal complaint also alleged that Judge Karasov claimed a homestead status for her townhome in Edina during 2009 when she did not personally occupy the townhome and that Judge Karasov failed to provide notice to the assessor of her rental agreement for the townhome. In its findings, the panel explained that the allegation related to the homestead status appeared to have been withdrawn, as the Board did not address this allegation in its final submissions. The panel also concluded that the evidence offered at the hearing did not support this allegation.

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Since 2001, Judge Karasov has owned a townhome in Edina, which is within her judicial district. She thereafter lived in that townhome except for the time period from July 1, 2009, through June 30, 2010, during which time she rented out the townhome pursuant to a written lease. Also, since at least 2001, Judge Karasov was registered to vote in Edina, listed the townhome's address or her work address in the Hennepin County Government Center on her driver's license, maintained property insurance for the townhome, and used the townhome address to register her vehicles. Judge Karasov was a member of a synagogue in Minneapolis, also within her judicial district, where she taught religious education classes. On February 1, 2007, Judge Karasov and C.C. purchased as tenants in common a lake home in Chisago City ("the lake home"), which is outside of the Fourth Judicia l District. Judge Karasov considered the lake home an investment and hoped to live there in retirement. C.C. and her daughter moved into the lake home. Judge Karasov spent many weekends and vacations at the lake home. In addition, Judge Karasov often spent time in Chisago City visiting her ailing father, who began living in senior housing in Chisago City in January 2007 and remained there until his death in September 2010. Judge Karasov began trying to sell her Edina townhome in March 2008. She wanted to downsize after her younger daughter graduated from high school that spring, and she also found it expensive to own two properties. In April 2008, Judge Karasov received an offer to buy her townhome, but the offer was withdrawn later that month. Afterward, Judge Karasov continued to try to sell her townhome. She reduced clutter in the townhome, in the hopes of making it look more 4

appealing to buyers, by moving belongings into a storage unit and giving some furniture to her older daughter. Around this same time, Judge Karasov spoke with a friend, M.L., about renting a room in her Bloomington home, which is in the Fourth Judicial District. M.L. was receptive to the idea. The two casually discussed which bedroom Judge Karasov would use, whether she would bring any of her own furniture, and the amount of rent she would pay. After the purchase agreement for her townhome was withdrawn, Judge Karasov did not discuss renting a room with M.L. until after she entered into the rental agreement for her townhome. After a year of being unable to sell her townhome, Judge Karasov began to search for a renter. On May 9, 2009, renters signed a 1-year lease for her townhome that began July 1, 2009. On June 6, 2009, Judge Karasov hired a professional moving company to move items from her townhome to her lake home. In the summer of 2009, Judge Karasov spoke again with M.L. about renting a room in her house. M.L. said yes, but no aspect of a rental agreement was finalized. M.L. later requested that Judge Karasov wait to move in until after M.L.'s son moved away to college at the end of August. Then, in late July or early August, M.L. told Judge Karasov she could not rent space in her house. Beginning July 1, 2009, Judge Karasov stayed at her lake home. By her own admission at the hearing, Judge Karasov stayed at the lake home from July 1, 2009, through the end of September 2009.

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Judge Karasov did not use any commercial means, such as an apartment finding service, to find an apartment or a room to rent in her judicial district. Instead, Judge Karasov contacted two other friends who lived in Hennepin County, which is within her judicial district, about renting from them. Judge Karasov had previously discussed renting a room in the home of a friend, B.O., who lived in Maple Grove, but the record does not reflect precisely when this discussion occurred. In an e-mail on July 30, 2009, Judge Karasov again brought up the possibility of renting a room from B.O., but Judge Karasov did not pursue the matter with B.O. Judge Karasov also had discussions with another friend, M.A., about renting all or part of her home in south Minneapolis. At the time of these discussions, M.A. had been trying to rent her home over the internet. Judge Karasov, however, did not want to pay as much money as M.A. was asking. On August 25, 2009, Judge Karasov sent M.A. an email stating, "[d]id you ever find a `real' renter? If not, I would still be interested in working something out with cash. A utility bill and cat sitting??!!" In an e-mail on August 31, 2009, M.A. talked about the possibility of Judge Karasov renting her house Monday through Thursday for $250 plus the electric bill. M.A. said, "if you decide to rent from me, you could start using the address immediately, but I won't charge rent until 10/1." As of August 31, 2009, Judge Karasov had never been inside M.A.'s home. In a September 9, 2009, e-mail, Judge Karasov told M.A. that she was not interested in renting M.A.'s house because "[m]y daughter wants me to be on her lease in Minneapolis which I think I am going to do because I give her money anyway." 6

Judge Karasov's daughter and her daughter's friend began renting a two-bedroom apartment on Fremont Avenue South ("the Fremont Avenue apartment") in Minneapolis on August 1, 2009. The rent for the apartment was $860 per month. During the 2009 Minnesota State Fair, Judge Karasov and her daughter discussed sharing the Fremont Avenue apartment. Judge Karasov's daughter told her mom that her roommate was not helping to pay the bills, and she asked her mom to help. Judge Karasov's daughter also talked with her roommate about sharing the apartment with her mom, and her roommate said it was fine with her, but they needed to talk to the rental agent. Judge Karasov's daughter testified that Judge Karasov told her how often Judge Karasov expected to stay at the Fremont Avenue apartment. Judge Karasov's daughter explained that Judge Karasov told her that she needed a place to stay on her bowling night, as well as on the weekends if there was bad weather and she did not want to go to her lake home. Judge Karasov claimed to have moved into the Fremont Avenue apartment in September 2009. The panel "reject[ed] as not credible Judge Karasov's testimony that she began to reside with [her daughter] at the Fremont Avenue apartment in the middle of September." On September 29 or 30, 2009, Judge Karasov's daughter and her roommate met with their apartment manager to ask about adding Judge Karasov to the lease. Judge Karasov's daughter told the apartment manager that she did not know how often Judge Karasov would be staying at the Fremont Avenue apartment and asked if they had to pay 7

another deposit. Judge Karasov's daughter also told the apartment manager that her mother needed a Hennepin County address to continue being a judge, but that her mother would only stay in the apartment if there was a blizzard or something. On October 1, 2009, Judge Karasov met with the apartment manager and signed a lease for the Fremont Avenue apartment. When Judge Karasov was added to the lease, the rent for the Fremont Avenue apartment increased from $860 to $885 per month. Judge Karasov paid only the $25 difference between the old and new rent amounts. Judge Karasov moved bookcases, end tables, clothes, and bathroom items into the apartment. She slept on an air mattress. Judge Karasov used a suitcase to bring items with her when she stayed in the apartment. The hearing before the three-member panel also addressed the Board's investigation of Judge Karasov. Initially, at a May 29, 2009, meeting of the Board on Judicial Standards, a Board member reported that Judge Karasov might be living outside of Hennepin County. This member stated the source of the information was a practicing lawyer who requested anonymity. The Board authorized a preliminary investigation of the allegations, and an outside firm conducted that investigation. Judge Karasov was not provided any notice of this preliminary investigation. When the preliminary investigation showed grounds for further pursing the matter, the Board hired outside counsel to assist. The Board did not inform Judge Karasov that it had hired outside counsel to assist with its investigation into her residency. In a letter dated September 28, 2009, the Board's Executive Secretary informed Judge Karasov that the Board had received "an anonymous complaint. The complaint 8

alleges that you are not a resident of the district in which you serve." The letter cited a number of provisions of the Code of Judicial Conduct, as well as the section of the Minnesota Constitution regarding the residency of district court judges. It stated, "[t]he Board, having now initially considered the matter, respectfully invites you to file a written response." The letter cited several provisions in Rule 6(d) of the Rules of the Board on Judicial Standards, which addresses investigations by the Board, and informed Judge Karasov that she was required to respond within 30 days of receiving the notice. The letter further stated that "before the Board `determines its disposition of the inquiry,' " Judge Karasov could "appear before the Board to `respond to questions.' " Judge Karasov received this letter on September 30, 2009. In a letter to the Board's Executive Secretary dated October 6, 2009, Judge Karasov said the Fremont Avenue apartment was her "current address." She stated, "I am renting this apartment with two roommates. Since being the victim of a stalker in 2001, I moved my residence and since that time I have kept my address and personal living situation non-public and confidential, except from my friends." She also explained that she continued to own a home in Hennepin County "that is currently rented out after being on the market for sale for over a year." On November 24, 2009, Judge Karasov spoke by telephone with outside counsel for the Board, who told Judge Karasov he was representing the Board and investigating the allegations about her residency. Judge Karasov was asked if she had ever lived outside her judicial district. In response, Judge Karasov said, "I have not lived outside the district." 9

On August 3, 2010, Judge Karasov and her counsel met with the Board's counsel and his investigator. During this interview, Judge Karasov was asked if she had ever lived outside of the Fourth Judicial District. Judge Karasov said she had not lived outside her judicial district, except temporarily in Chisago City from July 1, 2009, to the second or third week of September 2009, which is when she moved into the Fremont Avenue apartment. Judge Karasov said that during the July-September 2009 period, she resided at her lake home. At this interview, the Board's counsel also asked for more information about the stalker mentioned in Judge Karasov's October 6, 2009, letter. Judge Karasov said the stalker was a former boyfriend who appeared in her bedroom one morning and threatened her. When she was asked directly to identify the person involved in the 2001 stalking incident, Judge Karasov refused to do so. The Three-Member Panel's Findings and Recommended Sanction The panel concluded that the Board proved by clear and convincing evidence that Judge Karasov was not a resident of her judicial district from July 1, 2009, through September 30, 2009.2 Specifically, the panel found:

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The panel found that "[w]hile there is evidence to support the board's allegations that Judge Karasov was not a resident of her judicial district for a time before July 1, 2009 and after September 30, 2009, those allegations are not supported by clear and convincing evidence." The Board has not appealed the panel's conclusions with respect to Judge Karasov's residency either before July 1, 2009, or after September 30, 2009. Because no one has appealed these conclusions by the panel, we have not discussed in this opinion all of the evidence the Board presented regarding Judge Karasov's residency before July 1, 2009, or after September 30, 2009.

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During this time period, Judge Karasov did not have a place to live within the district, and the panel reject[ed] as not credible Judge Karasov's testimony that she nonetheless intended to continue her residence within the judicial district during this time period. Judge Karasov's failure to take reasonable steps to find a place to live within the district and her conduct in relation to the board's investigation belies her professed intent. The panel concluded that by "failing [to] reside within her judicial district during the period of July 1, 2009, through September 30, 2009, Judge Karasov has violated Article VI, Section 4, of the Minnesota Constitution" and Rules 1.1 and 1.2 of the Code of Judicial Conduct. The panel also concluded that the Board had proved by clear and convincing evidence that Judge Karasov violated Rule 2.16 of the Code of Judicial Conduct by failing to cooperate and be candid and honest with respect to the Board's investigation. The panel found that at the time she received the Board's letter informing her of the complaint about her residency, Judge Karasov did not have a place to live within her judicial district. The panel further determined that Judge Karasov omitted material

information from her October 6 letter to the Board about where she was living. The panel concluded that the letter was "a carefully worded and calculated attempt to evade further inquiry by the board into Judge Karasov's residency status." The panel also concluded that Judge Karasov gave inconsistent responses to the question of whether she had ever lived outside of her judicial district; she told the Board's counsel on November 24, 2009, that she had never lived outside of her district, but later said in an August 3, 2010, interview that she had lived outside of the district temporarily, from July 1, 2009, until the second or third week of September 2009. Finally, the panel found that Judge

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Karasov refused to provide the identity of the stalker who she claimed had caused her to keep her address confidential when "the identity of the stalker was material to the board's investigation." For these violations, the panel recommended that Judge Karasov be censured and suspended from judicial office without pay for 90 days. I. Under Rule 4(a)(6), Rules of the Board on Judicial Standards, "[c]onduct that constitutes a violation of the Code of Judicial Conduct" is a ground for judicial discipline. The Board has the burden of proving by clear and convincing evidence that a judge engaged in misconduct. Rule 10(b)(2), Rules of the Board on Judicial Standards; In re Blakely, 772 N.W.2d 516, 522 (Minn. 2009). Clear and convincing evidence requires that "the truth of the facts asserted is `highly probable.' " In re Miera, 426 N.W.2d 850, 853 (Minn. 1988) (quoting Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978)). We make an independent assessment of whether the Board has proven that a judge violated a provision of the Code of Judicial Conduct. See Rule 14(e), Rules of the Board on Judicial Standards; see also In re Blakely, 772 N.W.2d at 522; In re Murphy, 737 N.W.2d 355, 361-66 (Minn. 2007); In re Miera, 426 N.W.2d at 853-57. In so doing, we "giv[e] deference to the facts" found by the panel.3 Rule 14(e), Rules of the Board on

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This language in Rule 14(e) was added in rule changes that were effective July 1, 2009. Prior to that time, the Rules of the Board on Judicial Standards contained no provision discussing what, if any, deference the court was required to give the panel's factual findings. See Rule 13(f), Rules of the Board on Judicial Standards (2008). Prior decisions indicated that we were not required to give deference to the panel's factual (Footnote continued on next page.) 12

Judicial Standards. Accordingly, we will defer to the panel's factual findings unless they are clearly erroneous. Cf. In re Pinotti, 585 N.W.2d 55, 62 (Minn. 1998) (holding that in attorney discipline cases, we uphold a referee's factual findings unless they are clearly erroneous). The Board contends that Judge Karasov engaged in judicial misconduct by residing outside of her judicial district between July 1, 2009, and September 30, 2009, and by failing to fully cooperate and be candid and honest with the Board and its investigators. Judge Karasov disputes that the Board has proven by clear and convincing evidence that she engaged in any judicial misconduct. Applying the standard of review just articulated, we consider each claim of judicial misconduct in turn. II. We turn first to the charge that Judge Karasov violated Rules 1.1 and 1.2 of the Code of Judicial Conduct and Article VI, Section 4, of the Minnesota Constitution by failing to reside within her judicial district during the period from July 1, 2009, through September 30, 2009.4 The Minnesota Constitution provides that "[e]ach judge of the _____________________________________________________________________ (Footnote continued from previous page.) findings and suggested that we could reach our own factual conclusions. See In re Murphy, 737 N.W.2d at 361; In re Miera, 426 N.W.2d at 855; In re McDonough, 296 N.W.2d 648, 691 (Minn. 1979). Given this rule change, these cases no longer accurately state the standard of review regarding the panel's factual findings.
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Rule 1.1 of the Code of Judicial Conduct states, "[a] judge shall comply with the law, including the Code of Judicial Conduct." Rule 1.2 of the Code of Judicial Conduct states, "[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

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district court in any district shall be a resident of that district at the time of his selection and during his continuance in office." Minn. Const. art. VI,

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