Temperament and Public Service

Posted on Monday, October 3rd, 2016 by Tim Simonson and is filed under Divorce,  Minnesota.

If you’ve listened to recent discussion about the presidential election, you may have heard the issue of ‘temperament’ come up.  One of the candidates  recently questioned the other’s ‘temperamant’ and whether this made that candidate “unsuitable” to hold the office of Commander-in-Chief.

That raises a question of whether it’s important or fair for us to have expectations as to a public servant’s behavior or ‘temperament’ in serving the public. Is it fair to expect a public servant to behave in a certain way and if so, what are those expectations?

Take, for example, the Judiciary. In addition to being fair, impartial, and knowledgeable-in-the-law (or at least giving the appearance of having those characteristics) should we expect a Judge to speak and communicate in a neutral and dispassionate manner fulfilling the duties of that office?  How about even if we don’t hold ourselves to that same standard? 

If a Judge is expected to give an opinion on matters that are important to us, including matters that we are allowed to be passionate about, is it reasonable for us to expect a tepid, dispassionate response? 

Does it make sense to meet passion, emotion and spirit with monotone, neutrality and tepidity?

In a recent Minnesota Court of Appeals opinion, the Court of Appeals was not afraid to remind us that there are real people being asked to make decisions about circumstances and conflicts that we put before them.

The Court was asked to reverse a lower court’s determination that a Harassment Restraining Order (HRO) should be issued in favor of a minor child.  The HRO was sought by the child’s mother, who testified that both she and her child had been threatened with physical harm, abduction, in addition to threats to “shoot and kill” her. 

In deciding whether to affirm or reverse the lower court’s decision, the Court of Appeals looked at Minnesota law, which allows a court to issue a Harassment Restraining Order upon a finding of a “physical assault” or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect on the safety, security or privacy. See Minn. Stat. § 609.748 subd. 1(a).

In answering the question of whether the lower court got it right on this question, I can imagine the Court was struggling with whether there was even a question worth asking here. From the language of it’s opinion, you can see that the Court (or the Judge who authored the opinion) allowed itself a momentary, and well-timed, departure from the neutral and dispassionate prose to which its reading audience is accustomed:

“Threatening to physically harm someone, especially threatening to shoot or kill them, and threatening to abduct a child from the child’s custodial parent “is objectively unreasonable” (you think!) and any reasonable person would feel that her safety and security had been violated.”

The above quote is pulled directly from the wording of the Court’s opinion. No edits as to syntax or phrasing. The Court’s decision to include of the parenthetical “(you think!)” illustrates perfectly the author’s reasoning in supporting the lower court and is instructive as to how the Court applies the law to the fact pattern.  It’s a rare look at what the Court is really thinking.

Allowing public servants to express themselves in a manner and custom to which we reserve only for ourselves in regular discourse can be purposeful and effective. 

Is it fair then, to question a person’s “temperament” and therefore suitability to use good judgment in public service, for just saying what we are all thinking? 

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