Hennepin County District Court File No. 02015933.
The term "retired judge" in article VI, section 10 of the Minnesota Constitution includes a judge who has terminated active service and who qualifies for a retirement annuity under Minn. Stat. § 490.124, subd. 2 (2004).
The opinion of the court was delivered by: Dietzen, Judge
Considered and decided by Worke, Presiding Judge; Dietzen, Judge; and Collins, Judge.*fn1
Appellant challenges the denial of his petition for post-conviction relief, arguing that the 2002 appointment of the Honorable H. Richard Hopper, formerly a district court judge, by the chief justice of the Minnesota Supreme Court to preside over criminal charges against appellant was unconstitutional because Judge Hopper was not a "retired judge" within the meaning of article VI, section 10 of the Minnesota Constitution and the applicable statutes. Because Judge Hopper was a "retired judge" under the Minnesota Constitution, we affirm.
Appellant Roland C. Amundson served as a judge on the Minnesota Court of Appeals from 1991 until 2002. Before being appointed to the Minnesota Court of Appeals in 1991, appellant served as personal representative and executor of an estate. The Amy Day Trust, which was a beneficiary of the estate, was created to provide for a mentally handicapped woman. In 1994, after six years of probate proceedings, the estate was settled, the trust received its distributive share, and appellant assumed control of the trust. Ordinarily, judges are precluded from serving as fiduciaries for non-family members, but appellant obtained a waiver from the Minnesota Board of Judicial Standards to serve as trustee. See Minn. Code Jud. Conduct Canon 4E(1).
Appellant embezzled more than $300,000 from the trust for his own use. When appellant's actions were discovered in 2002, he resigned as a judge of the court of appeals and was disbarred. He was then charged in Hennepin County with five counts of theft by swindle. The chief justice of the Minnesota Supreme Court appointed the Honorable H. Richard Hopper, who formerly served as a judge of the district court, to preside over all matters relating to the Amy Day Trust. The appointment order identified Judge Hopper as a "Retired Judge of the District Court of the First Judicial District of the State of Minnesota" and it indicated that the appointment was made pursuant to Minn. Stat. § 2.724, subd. 3(a), which authorizes the chief justice to assign any retired judge to serve "as a judge of any court except the Supreme Court."
Judge Hopper was appointed to the district court in 1989. In 1990, he was elected to the seat and served in that position until 1996. In February 1996, Judge Hopper, who was then 48 years old, requested that the governor accept his "resignation" from the bench. The governor accepted Judge Hopper's resignation and ordered that Judge Hopper's "retirement" become effective on June 1, 1996. The director of judicial appointments informed the state court administrator of the upcoming judicial vacancy, indicating that the governor had "granted retirement" to Judge Hopper. The governor accepted Judge Hopper's "resignation" and recognized that the judge's "decision to resign from the bench could not have been an easy one."
Judge Hopper was assigned, without objection, to appellant's case in 2002. Following appellant's guilty plea to five counts of theft by swindle, Judge Hopper ordered that appellant receive upward sentencing departures on all five counts based on aggravating factors (vulnerability of the victim, abuse of a position of trust, and major economic offense). The concurrent sentences totaled 69 months. Appellant did not file a direct appeal from the convictions or sentences.
In December 2004, nearly two-and-one-half years after his conviction and sentencing, appellant filed a post-conviction petition, arguing that the appointment of Judge Hopper violated the Minnesota Constitution and applicable statutes. The post-conviction petition was considered by a sitting district court judge who had not previously heard any aspect of the case. That judge denied relief, concluding that the assignment did not violate the state constitution. This appeal follows.
I. Is this appeal time-barred?
II. Is appellant's claim moot?
III. Did the district court err by concluding that Judge Hopper was a "retired judge" eligible for assignment by the chief justice to ...