State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1081

State of Minnesota,
Respondent,

vs.

Allison Feierabend Scudder,
Appellant.

Filed May 16, 2022
Reversed and remanded
Johnson, Judge

Ramsey County District Court
File No. 62-CR-19-5073

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Co chran, Judge; and
Rodenberg, Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
JOHNSON, Judge
Allison Feierabend Scudder pleaded guilty to one count of felony theft based on her
admission that she stole several pieces of jewelry from a woman who employed her at a
home-based business. The district court ordered Scudder to pay restitution. We conclude
that Scudder was denied her right to an impar tial judge at the restitution hearing because
the district court judge independently investig ated facts and revealed the results of the
investigation in open court during the restitution hearing. Because that error is a structural
error, we reverse and remand for a new restitution hearing.
FACTS
For approximately two months in 2019, Scudder worked at S.N.’s home-based
child-care business in the city of Shoreview. During her employment there, Scudder took
at least 100 pieces of jewelry be longing to S.N. Scudder so ld the jewelry to two pawn
shops and on an online marketplace.
In November 2019, Scudder pleaded guilty pursuant to a plea agreement to one
count of felony theft, in viol ation of Minn. Stat. § 609.52, su bds. 2(a)(1), 3(3)(a) (2018).
In January 2020, the district court ordered, among other things, a st ay of imposition of
sentence, three years of probation, three days of jail time, a nd payment of restitution. At
the state’s request, the district court left restitution “open” for 90 days.
S.N. requested restitution in the am ount of $12,333. A probation officer
recommended that the district court order res titution of at least $3,45 9 for S.N. Scudder
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requested a hearing and asserted objections to the number of items included in the
restitution request and their claimed values.
The district court scheduled a restitution hearing for September 2020. At the outset
of the hearing, the district court expressed its concerns that the restitution request included
some items that were claimed more than on ce and some items that law enforcement had
recovered from Scudder and presumably returned to S.N. The district court continued the
hearing to allow the certified student attorney representing the state and S.N. to better
organize the evidence of S.N.’s losses.
The restitution hearing resumed in March 2021 . S.N. was the state’s sole witness.
During S.N.’s testimony, the state offered a 37-page document consisting of a compilation
of receipts and website print- outs, which had been assemble d by S.N. Scudder objected
on foundation and hearsay grounds. The state questioned S.N. to lay a foundation for each
page of the exhibit. In doing so, the state questioned S.N. about a print-out from the Kohl’s
retail store’s website that depicted a pair of tri-tone, triple-oval, hoop earrings. The website
print-out states the regular price of those earrings as $325 and the discounted price as $104.
The district court received the exhibit into eviden ce. On cross-examination, Scudder’s
attorney asked S.N. questions about the price of the tri-tone, triple-oval, hoop earrings.
Scudder did not testify and did not introduce any other evidence.
At the conclusion of the hearing, the district court stated that it would take the matter
under advisement. The district court judge then stated, “You know, I’d be remiss if I didn’t
note a simple Google search show s, for example, tri-tone hoop earrings have a value of
$400 today on the Kohl’s website with a sale price of 20 percent o ff and buy one, get a
4
second 50 percent off. So I agree that I am in quite a position to try to determine what the
value of these items is.” Scudder did not object or otherwise respond.
In June 2021, the district court filed an order that requires Scudder to pay S.N.
restitution in the amount of $9,741. The district court made a finding of the value of each
of the 18 pieces of jewelry for which restitution was awarded. The district court found that
the value of the tri-tone, triple-oval, hoop earrings is $104, which is the lesser amount
shown on the Kohl’s print-out in the state’s composite exhibit. The district court’s order
does not refer to a Google search or to the pri ces mentioned by the di strict court judge at
the conclusion of the hearing. Scudder appeals.
DECISION
Scudder makes four arguments for reversal of the district court’s restitution order:
(1) the district court deprived Scudder of he r constitutional right to an impartial judge by
independently investigating rele vant factual issues; (2) the di strict court did not conduct
the hearing in an impartial manner because it repeatedly coached the certified student
attorney representing the state; (3) the distri ct court erred by awar ding, for certain items,
more in restitution than S.N. paid; and (4) the district court erred by reserving the issue of
restitution for a particular piece of jewelry.
We begin with Scudder’s first argument. The Sixth Amendment to the United States
Constitution confers on criminal defendants the right to be tried by an impartial jury. U.S.
Const. amend. VI; see also Minn. Const. art. I, § 6. Sim ilarly, a criminal defendant has a
right to an impartial judge. State v. Dorsey , 701 N.W.2d 238, 249 (M inn. 2005). That
right is “not specifically enumerated in the Constitution” but “has long been recognized by
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the United States Supreme Court.” Id. (citing Rose v. Clark , 478 U.S. 570, 577 (1986)
(citing Tumey v. Ohio , 273 U.S. 510 (1927)), and Greer v. State , 673 N.W.2d 151, 155
(Minn. 2004)). The right to an impartial judge is grounded in the Due Process Clause of
the Fourteenth Amendment to th e United States Constitution. See Tumey, 273 U.S. at
514-15; Payne v. Lee, 24 N.W.2d 259, 263-64 (Minn. 1946) (cited by Greer, 673 N.W.2d
at 155). If an appellant has been deprived of the constitutional right to an impartial judge,
the error is a structural error, which requir es reversal and rema nd without regard for
whether the appellant was prejudiced by the error. Dorsey, 701 N.W.2d at 253.
A.
Before considering the merits of Scudde r’s first argument, we will consider the
state’s argument concerning the scope of our review. The state argues that, because
Scudder did not object to the alleged error that is the subject of her first argument, the plain-
error test applies. The state further argues that Scudder cannot satisfy each requirement of
the plain-error test. In her reply brief, Scudder does not cl aim that she objected to the
alleged error; she argues only that the structural-error doctrine—not the plain-error test—
applies.
The state contends that the plain-error te st applies instead of the structural-error
doctrine for two reasons. First, the state acknowledges that the error in Dorsey was a
structural error but contends that Dorsey is distinguishable on the ground that the judge’s
improper investigation occurred during the guilt phase of tria l, not during the sentencing
phase, as in this case. There is no language in Dorsey expressly limiting its holding to the
guilt phase of trial or making an exce ption for sentencing or restitution. See 701 N.W.2d
6
at 249-53. In a similar context, the supreme court has stated, “A judge must maintain the
integrity of the adversary system at all stages of the proceedings.” State v. Schlienz, 774
N.W.2d 361, 367 (Minn. 2009) (emphasis added). In add ition, the supreme court has
declined to distinguish Dorsey in a similar case in which the district court judge presided
over a jury trial and, thus, was not the fact-finder. See State v. Malone, 963 N.W.2d 453,
466-67 (Minn. 2021). Accordingly, we decline to distinguish Dorsey in the manner urged
by the state.1
Second, the state contends that the structural-error doctrine does not apply because
the supreme court applied the plain-error test to an unobjected-to claim of judicial bias in
Schlienz. Contrary to the state’s contention, the supreme court did not state in Schlienz that
the plain-error test necessarily applies if there is an unobject ed-to claim of judicial bias.
See 774 N.W.2d at 365. Rather, the supreme court stated that it “need not decide whether
there was structural error” because reversal also was appropriate under the plain-error test.
Id. Indeed, the state acknowledges, in a footnote, that there “appears to be an open question
in Minnesota whether constitutional claims of judicial partiality are always reviewed for
structural error.” Accordingl y, we decline to interpret Schlienz as having implicitly
overruled Dorsey with respect to the relationship between the structural-error doctrine and
the plain-error test.

1We note that our approach is consistent with prior non-prece dential opinions in
which this court has applied Dorsey to the sentencing phase and has concluded that the
error was a structural error that required automatic reversal. See State v. Leckner, No. A19-
1007, 2020 WL 3 172651, at *3-4 (Minn. App. June 15, 2020); State v. Weidenbach ,
No. A16-1166, 2017 WL 1548619, at *2 (Minn. App. May 1, 2017).
7
We note that, after the parties submitted th eir briefs, the supreme court issued an
opinion in which it elaborated on the interplay between th e structural-error doctrine and
the plain-error test in the context of an argument asserting an unobjected-to violation of the
Sixth Amendment right to a public trial. See State v. Pulczinski, ____ N.W.2d ____, ____,
No. A21-0065, 2022 WL 10210 49, at *5-10 (Minn. Apr. 6, 2022). The supreme court
noted that “a violation of the right to a public trial is a form of structural error.” Id. at *7.
The supreme court nonetheless applied the fourth requirement of the plain-error test based
on its prior caselaw and an intervening opinion of the United States Supreme Court. Id. at
*7-9 (citing State v. Benton , 858 N.W.2d 535, 539-41 (Minn. 2015), and Weaver v.
Massachusetts, 137 S. Ct. 1899, 1907-08, 1910, 19 12 (2017)). The supreme court
concluded that reversal was not warranted in that case because, even if the appellant could
establish the first and second requirements of the plain-error test, he could not establish the
fourth requirement, that “the allegedly errone ous closure seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Id. at *9. The supreme court
expressly limited its holding, stating as follows: “Our analysis is specifically limited to a
particular type of structural error: a violation of the right to a public trial. We do not decide
today whether other types of structural errors may require automatic reversal even when
those errors are unpreserved at trial.” Id. at *9 n.9.
Because the holding in Pulczinski is limited to the Sixth Amendment right to a
public trial, we do not apply the Pulczinski plain-error analysis in this appeal. Rather, we
are following Dorsey, which applied the structural-error doctrine to an argument based on
the same right on which Scudder relies: the right to an impartial judge under the Due
8
Process Clause of the Fo urteenth Amendment. See 701 N.W.2d at 242- 44, 249-53. The
narrow, limited holding in Pulczinski tends to confirm that we should not apply the Schlienz
plain-error analysis because the appellant in Schlienz asserted the non-constitutional right
to judge who is not disqualified by the code of judicial conduct, not the constitutional right
to an impartial judge. 774 N.W.2d at 366-69.
B.
To reiterate, Scudder argues that the district court erre d by violating her
constitutional right to an impartial judge. Th e right to an impartia l judge “requires that
conclusions reached by the trier of fact be based upon the facts in evidence . . . and
prohibits the trier of fact from reaching conclusions based on evidence sought or obtained
beyond that adduced in court.” Dorsey, 701 N.W.2d at 249-50 (citing Johnson v.
Hillstrom, 33 N.W. 547, 548 (Minn. 1887), and Spinner v. McDermott, 251 N.W. 908, 908
(Minn. 1933)). This court applies a de novo standard of review to the question whether a
district court deprived a criminal defendant of the constitutional right to an impartial judge.
See id. at 249.
In Dorsey, the district court judge doubted th e testimony of a defense witness and
shared her concerns with counsel. Id. at 243. The district court judge asked a law clerk to
investigate the fact that had caused her to do ubt the witness, which was determined to be
different from what the witness ha d stated in her testimony. Id. The district court judge
noted the discrepancy on the record and in a written order. Id. at 243-45. The district court
found Dorsey guilty, based in part on the defense witness’s lack of credibility. Id. at 245.
On appeal, Dorsey argued that the district court judge was not impartial because she had
9
openly questioned a defense witn ess’s testimony, independentl y investigated a fact to
which the witness had testified, and revealed the results of her investigation in open court.
Id. at 249. The supreme court concluded that th e district court judge erred for the three
reasons identified by the appellant. Id. at 250-52.
In this case, Scudder contends that the di strict court erred in essentially the same
way that the district court erred in Dorsey. Scudder contends that the district court judge
“independently investigated facts at issue: how Kohl’s pric ed its merchandise” and later
“revealed her investigation and its results.” The record supports Scudder’s contention. The
district court judge’s statement at the conc lusion of the hearing makes clear that the
judge—like the judge in Dorsey—conducted an independent i nvestigation into relevant
facts and announced the results of her investigation in open court. See id. at 249-52. Thus,
the district court denied Scudder her constitutional right to an impartial judge.2

2In reaching this conclusion, we do not inte nd to criticize, chas tise, or impugn the
reputation of the district court judge. In Dorsey, the supreme court stated, “we are
confident that the judge who presided over Dorsey’s bench trial was motivated by her
desire to seek the truth and be candid about what she knew.” 701 N.W.2d at 250. The
supreme court added that it was “mindful of the dynamic circumstances in which district
court judges must make decisions” and that its opinion was “not intended to be critical of
the judge’s decision in this case.” Id. at 250 n.7. Similarly, in Malone, the supreme court
stated that it was “mindful of [the] dynamic circumstances” that existed in the district court
and that its opinion was “not intended to chas tise or impugn the reputations of any of the
district court judges involved.” 963 N.W.2d at 469 n.17. In the present case, it is apparent
that the district court encountered difficultie s in obtaining the info rmation necessary to
resolve the restitution issue in an accurate and thorough ma nner. The certified student
attorney representing the state did not presen t evidence with the sk ill of an experienced
prosecutor, and Scudder did not in troduce any affirmative eviden ce of the values of the
stolen items. As in Dorsey, we believe that the judge in th is case “was motivated by her
desire to seek the truth and be candid about what she knew.” See 701 N.W.2d at
250. Nonetheless, the district court judge’s actions constitute an error under Dorsey.
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Scudder also contends that the district court judge “used the results of her
investigation . . . to support a restitution awar d for the items without receipts.” We need
not determine whether the district court ju dge actually relied on the results of her
independent investigation in making findings of fact and conclusions of law. The fact that
the district court judge conducted an independe nt investigation into relevant facts is a
sufficient reason to conclude that Scudder was denied he r constitutional right to an
impartial judge. See id. at 253 (reasoning that “the judge’s investigation . . . has caused us
to hold that Dorsey did not receive a fair trial before an impartial finder of fact”).
Because the denial of the constitutional right to an impartial judge is a structural
error, we are compelled to reverse the rest itution order and remand for a new restitution
hearing. See id. at 252-53. In light of our conclusi on that Scudder is entitled to a new
restitution hearing for the reasons asserted in her first argument, we need not consider her
second, third, or fourth arguments.
Reversed and remanded.