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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.
Oo-ee, oo-ee baby, won't you join the judgie on a nude sea cruise? "Some Supreme Court judges seek relief from work stress in the comfort of their families. Others love nothing more than to curl up with a good book. And could it be, for at least one of them, a nude romp on the high seas was just the ticket? The anonymous judge's alleged unconventional vacation choice -- a nude cruise -- came to light in a San Francisco Chronicle travel article in the spring. It quoted a co-owner of the Bare Necessities cruise line, Nancy Tiemann, as saying that its clientele include: 'actors, bus drivers, Fortune 500 CEOs, soccer moms, doctors, teachers, priests and at least one Canadian Supreme Court justice.'" More (Globe and Mail 10.31.2006). Comment. I was an after-school rock'n'roll deejay going by the name Rockin' Rand on my hometown radio station, "KBMO, 1290 on your dial," in 1959 when the immortal Frankie Ford, the New Orleans Dynamo, earned his ticket to Rock'n'Roll Heaven with his rendition of "Sea Cruise." Back then, some of us small-town Norwegian-Lutheran boys believed that nuns weren't allowed to see themselves or each other naked and therefore didn't remove their habits when showering. I now think, although I'm not sure, that I was misinformed. I also no longer really believe the rumor that some judges never remove their robes, even in the shower. Indeed, I wouldn't be surprised if some go so far as to dream occasionally, quite unintentionally, about anxiously finding themselves on the bench in open court not only robeless (!) but naked. Nor would I be surprised to learn that some judges who've gone on Caribbean cruises have gone ashore and, from a respectable distance, looked through binoculars at the outrageously bold female bathers at those notorious and certainly unconstitutional Caribbean nude beaches. But I am surprised at the news that "at least one Canadian Supreme Court justice" (does that imply the possibility of more than one?) went on a nude sea cruise. Oh well, I guess a judge's gotta move with the times. If old man rhythm is in a judge's shoes, I see no reason or use to his or her sitting on the bench all the time without occasionally not only singing the blues but concluding that he/she has got nothing to lose by going incognito on a nude sea cruise. Oo-ee, oo-ee baby, won't you join the judgie on a nude sea cruise? Further reading. Want ideas on appropriate judicial swimwear for those trips ashore while on a nude sea cruise? See, BurtLaw Judicial Swimsuits.
The campaign to retire mandatory retirement of judges. "Our history shouts loudly of a bygone era where ethnic races were discriminated one against the other during the late 19th and early 20th centuries on the plantations. Today in Hawaii we pride ourselves on our diversity, our equality and our deference toward each other. Why is it then that Hawaii continues to discriminate against a judge because of his or her age?...The time has long since passed to end age discrimination in Hawaii. That is why I will vote 'yes' on Constitutional Amendment Question 3." From an opinion piece by Clayton Hee, vice chairman of the Judiciary Committee in the state Senate of Hawaii. More (Honolulu Star-Bulletin 10.29.2006). Earlier. See, AARP urges voters to end mandatory retirement of judges in Hawaii and commentary with embedded links to some of my extensive earlier writings in opposition to mandatory retirement of judges.
The use of the quick-scan technique in judging effectively. "When Roy Wadding sits down at a bar, he makes sure to scan the draft selection before ordering a beer. His eyes zip from one tap handle to the next, searching for something different, something he has never tried before. 'I see something new and I gravitate to it,' the Tampa., Fla., man, 51, said recently at a Winking Lizard Tavern in Columbus. Such is the power of an eye-catching tap handle...." More (Akron Beacon-Journal 11.01.2006). Comment. This is an interesting piece about the use by breweries and micro-breweries of larger or more colorful or artsy or exotic tap handles to catch the attention of customers at pubs, bars, etc., some of which carry up to a hundred different brands of beer and ale on tap. What does it have to do with the judicial branch? It's almost like asking what is jazz -- a question to which Louis Armstrong replied that if you need to ask, you'll never know. I'll simply say that if you have to ask what the trend in tap handles has to do with the judiciary, you may need a refresher course in divergent thinking. Thinking divergently, one might make any of a big number of possible connections. One connection that comes to mind is that which comes if one thinks of a courtroom with its bar as akin in some ways to a drinking establishment with its bar. Another wild or not-so-wild connection: gavel as tap handle. Yet another: justice as the ale that courts have on tap. Are there different brands of justice, some premium, some not? To what extent do courts compete, as breweries and micro-breweries do, and with what do they compete? Do judges compete with each other? Ought they? Might a trial judge want to commission a unique gavel, instantly recognizable as his? And how about a chief justice of an appellate court? If C. J. Rehnquist, in his wisdom, was correct in commissioning the special robe with "four gold chevrons on each arm -- inspired by Gilbert & Sullivan's Lord Chancellor from the comic operetta Iolanthe" (more), might not C. J. Roberts want his own unique gavel in order to show, inter alia, that he, too, can be creative and unique? The list of associations and connections, you see, is as broad and deep as your mind is capable of stretching or dredging. The author of the tap-handle piece says: "You name it and it's been fashioned into a tap handle: Orca. Saxophone. Bloody hatchet. Pelican. Lightning bolt. Rocket ship. Hockey glove. Turtle floating on a raft. Frog leg. Lighthouse with working light. Lobster claw." I say, "You name the judge. Each one is different. Each deserves his own, unique gavel, one that represents his or her unique brand of judging." And we here at the international headquarters of BurtLaw's The Daily Judge are only too willing to meet the demand. We've proven ourselves capable not only of meeting the demand but of creating the demand. Thus, we've been standard-setters in courthouse fashion [Courthouse Fashion, part I: Another judge tries instituting courthouse dress code; Courthouse Fashion, part II: The Viking influence on judicial fashions; Courthouse Fashion, part III: Judges voice objection to some lawyers' attire] and we've been trend-setters in designing new and more versatile BurtLaw Super-Privacy Robes, in marketing innovative BurtLaw Judge-Endorsed Bench Pants and BurtLaw Judicial Swimsuits, in identifying the need for judicial makeovers, in developing BurtLaw Gravi-Tox, in creating BurtLaw Judicial Extensions...the list goes on....
Annals of judicial secretaries. Our BurtLaw judicial-secretary-of-the-month award goes to Nikki Yates, featured in an interesting profile in the Charleston Daily Mail: "Judges come and go, attorneys move on and the parade of people in courtrooms constantly changes. Nikki Yates has remained practically in the same seat for 27 years to guide them all. Yates, secretary to Kanawha Circuit Judge Jennifer Bailey Walker, will retire today...'A lot of people don't stay on when judges change...Because their personalities are very different, and they have their own way of doing things. Secretaries have trouble getting used to that.' But Yates said she is a flexible person and was able to adapt each time she found herself working with a new judge...." More (Daily Mail - W.VA 10.31.2006). Comment. This is a charming profile of a judicial secretary. I wrote a profile in December of 2000 on the death of another great judicial secretary, Marlene Kane, and posted it on my website. I recently got a request for a copy. I may as well post it here, since it says some things about judicial secretaries that maybe some judges and others need to be reminded of from time to time.
In the fall of 1970 I began working as a law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court in the east wing of the Capitol in St. Paul. Thus began my friendship of 30 years with his secretary, Marlene L. Kane, who died on December 9 at Mercy Hospital. It was my privilege to be in daily e-mail contact with Marlene during the last year leading up to her death. I already miss her greatly.
It is a curious fact that the people I remember most from my three years studying at Harvard Law School and my 28 years working at the state supreme court are not the professors or the judges. On my first day at law school the Dean, Erwin N. Griswold, introduced himself to us new students as "the maitre d'hotel of this menage of prima donnas." I'm not saying anything new when I observe that a supreme court is also "a menage of prima donnas." In both cases, many of the members of the menage typically pretend to an ordinariness and humility. They remind one of the Dickens character, Uriah Heep, in David Copperfield, who said proudly, "I am well aware I am the umblest person going."
It says in the Bible "All flesh is grass." What a wonderful egalitarian sentiment. Ultimately, we all are equal, if not always before the law in practice, always before God. But only some, not all, people know this. Typically, in my experience, the folks who know it are the folks who don't have big titles and don't put on airs, who treat everyone kindly, and not because it will get them points. Folks like "Little Wash," a black janitor at Harvard Law, who used to sit and talk with me, sometimes even buy me a milkshake, on the occasions when he'd run into me in the grille on the second floor of Harkness Commons, to which I regularly went after a night of studying. Wash was the father of "Big Wash," Ned Washington, who was an All-American basketball player at a college in Boston who later played pro ball in the American Basketball Association. At Christmastime, 1966, when I told him I wasn't going home for Christmas, Wash invited me over to his house to spend it with his family. I didn't take him up on it, but I've never forgotten the invitation or his daily kindness. And I've never forgotten the kindness of "Kelly," the friendly, voluble burger-flipper at the grille, who, like Wash, was a far more significant figure in the daily lives of many of the students than were the star professors, many of whom not only were egomaniacs but just plain ornery, nasty men.
Marlene grew up in "Nordeast" Minneapolis. She hadn't had the choices that I'd had. If she had had, she could have gone to college anywhere, because she was just plain smart. But no matter. She became a terrific legal secretary, helped Justice Peterson win election to the court, and helped him and his family in so many unadvertised ways as his secretary. She also, and more importantly, was a wonderful wife, to Clyde, and a wonderful mother, to Erin. And to many of the young men and women who worked as Justice Peterson's law clerks over the nearly 20 years he was at the court, she was part "mother hen" (her term), part psychiatrist, part editor, always friend and confidante. And she didn't hold it against you that things had come so much easier for you than for her. And she was fearless.
During my first year, I declined (de-Kleined) to make a contribution to the annual United Way campaign at the court. Dick Klein, the court's administrator, was upset with me and pressured me to contribute ("...even if it's just a dollar"), saying it was essential that everyone participate. It later turned out that Dick's main concern was that he would not be invited to a dinner given for campaign solicitors unless he obtained 100% participation by court employees. When I said no, he pressed me for a reason. I said, "Because I don't like the fact that in businesses and organizations all around the Twin Cities, employees are pressured just like this to give to an organization they don't all want to support; it's not true giving if one is pressured by one's employer to give." I told Marlene what had happened and said, laughingly but a bit nervously, that I supposed I'd "get in trouble." Marlene chuckled and said, "If you get in trouble, I will, too, because when he comes around I'm going to tell him the same thing." A number of others eventually "joined the brigade" and it was the last time, to my knowledge, that undue pressure was applied to supreme court employees to participate in the United Way campaign. That was pure Marlene. A bit of a rebel. Not afraid to stand up on matters of principle. Always ready to stand by her friends.
Marlene not only stood by me, she stood up for me. It was she, for example, who suggested to Justice Peterson that the court hire me to work as one of the commissioners when the office was established in 1972. And when my first child, Jennifer, was born, Marlene and one of her law clerks, Rich Krantz, were at the hospital before anyone else, armed with a big stuffed animal that Jennifer still has. Later, when Erin got married, Marlene didn't just invite my wife and me -- she invited the kids too. It was Jennifer's "first wedding," and she reminded me the other day what a big impact it had on her. Once my mother had to be hospitalized suddenly in a Minneapolis hospital. Like me, she preferred her privacy perhaps more than most people do and asked for a private room, but she was told none was available. I mentioned her disappointment to Marlene. Marlene said, "I know the secretary for the administrator." Within minutes Marlene called her and reported to me, "It's done" -- my mom had her private room.
I've always felt that the court secretaries at any appellate court are just as important as the law clerks and the judges. There is much talk in such institutions about the "court family." One should be skeptical of such talk, because it is often just that -- talk. For example, it is no secret that for all the years I worked at the court, the legal secretaries had no job security. It was almost as if they were part of an Egyptian pharaoh's family, doomed to be buried with the pharaoh when he died. Not quite: the "rule" was that if a judge died or retired, it was up to the successor judge whether to retain the secretary. Eventually most, maybe all, of the secretaries who wanted to work for the successor judges were able to do so, but only at the judge's discretion. And in many cases not without first going through a sometimes tormenting period of being in limbo, uncertain whether one would remain a part of "the family."
In the late 1980's, following the creation of the court of appeals, the supreme court was reduced in size from nine members to seven by attrition. Even though Justice Peterson was senior associate justice when he retired and even though Marlene had been his court secretary since his election to the court, his decision to retire meant that Marlene wasn't even given the de facto security of "probably" being allowed to stay on as a secretary. At most it was, "We'll try our best to figure something out." One would think that with "women's lib" and equal pay for equal work, regardless of one's gender, the court eventually would get around to truly treating the secretaries as the professionals that they are, by simply giving them the security (and the pay, one might add) that they deserve -- and maybe the court has by now. I hope so. All I know is that when I left the "court family" late in 1998, the old "rule" was still in effect.
After Marlene left the court, she worked briefly for a prominent law firm, then began working as a secretary for the State Public Defender's Office, before retiring. She'd call me occasionally and we'd have a nice conversation. But I was "lazy" about our friendship, and for awhile, too long, it lay somewhat dormant. All my fault and my loss.
Sometimes, though, Life gives us second, even third, chances. A little over a year ago Marlene called me and we talked. I apologized for my negligence in friendship. I asked her if she used e-mail. She said she did. And thus, thankfully, our friendship blossomed forth once again. We were basically in daily e-mail contact the last year of her life. And she was my main supporter in my quixotic noncampaign against the current chief justice. And she was public about it, fearless and loyal as she was back in 1970 when I took on Dick Klein over the silly "rule" that all employees had to give to the United Way.
Curiously, despite the fact that she was suffering from congestive heart failure, she told me that the best time of her life was the present and that she absolutely loved being a grandparent along with Clyde to their daughter Erin's daughter, Chelsea.
Sooner or later, at some point, Life breaks the heart and spirit of each of us. But everything God allows is, if looked at properly, a Blessing. Mother Theresa, missionary to so many in India, spoke of "the Gift of suffering," and she knew of what she spoke. And so it is that one sometimes finds oneself very much alone -- after a breakup or a rejection or a loss -- and one surprises oneself, perhaps during a late night walk in the rain, by whispering the words, "Thank you, God." Why does one say thank you? In my case because long ago, in confirmation in the Norwegian Lutheran church, I was told by Reverend Harold Nasheim to "be thankful in all things." And because what I was taught was true, even though no one of us really believed it or knew what Rev. Nasheim was talking about at the time.
In her last e-mail to me, written just hours before she had to be hospitalized in intensive care, she told me how grateful she was for Clyde's wonderful care and that she had called Daytons and ordered him a cashmere sport coat for Christmas, which she'd always wanted him to have, and she sure hoped he'd like it. I know he did. And I know she knew how thankful I was for her friendship, because I told her so. And I'll tell her again, right now: thanks, pal.
County attorneys want judge investigation dropped. "A group of Minnesota prosecutors wants a state Supreme Court review board to drop its investigation of former Clay County Attorney Lisa Borgen. Borgen is now a judge, and is being investigated for alleged misconduct during the Troy Mayhorn trial...." More (WCCO TV 10.31.2006). Comment. For my criticism of this investigation and what prompted it, see, What's 'unprecedented,' what's not.
Two judges are probed over collusion in timing of decision. "A judicial ethics commission is investigating whether two judges colluded in a decision that could have been damaging to Robert M. Morgenthau, the Manhattan district attorney, just days before last yearís Democratic primary. The stateís Commission on Judicial Conduct is looking at whether Justice William A. Wetzel of State Supreme Court in Manhattan influenced a fellow justice in the same court, Michael R. Ambrecht, to issue a ruling critical of Mr. Morgenthau in a case involving Leslie Crocker Snyder, Mr. Morgenthauís opponent in the primary...." More (N.Y. Times 10.31.2006). Comment. I don't know anything about the matter under investigation. However, it makes sense to use this story as a springboard to once again remind judges of the risks attendant to timing consideration or decision of a case with an ulterior purpose in mind. As judges in California know, diddling around with the timing of a controversial decision's release with a judicial retention election in mind is a no-no. Similarly, we believe it would be improper for an appellate court to delay briefing and setting a controversial case for argument in the hope of postponing consideration of the case until after judicial elections. But the underlying principle is a broader one than "A court ought not delay filing an opinion in order to prevent the appointing or elective or confirming authority from seeing an opinion that might weigh for or against appointment, election or confirmation." Thus, we believe it would be improper for an appellate court to delay a controversial case until after the end of a legislative session in the hope of improving the judiciary's chances of getting more funding. But that's just us.... Might it be okay for a court to hasten release of a decision interpreting a statute or declaring a law unconstitutional in order to give the legislature, then in session, time to respond in some way? How about this hypo: Suppose the chief is in the minority in a case declaring a statute unconstitutional under the state constitution and he rushes the release of the opinion in order to allow the legislature, before going into rcess, to vote to place an amendment reversing the majority's decision on the fall ballot? If you think it's okay to do that, would it be okay for the chief, if in the majority in the hypo, to delay releasing the opinion in order to prevent the legislature from responding before recess? We offer a modest suggestion: a court ought to have clear, neutral, principled policies in place regarding the circulation and release of decisions and deviations from those policies ought to be allowed only with full approval of all members of the court. Moreover, if an opinion's release is hastened or deferred as an exception to policy, the opinion ought to explain so in a footnote. Earlier relevant posting. Hearings involving ex-chief offer peeks behind red velour curtains and embedded links to previous postings.
'Merit is our bedrock.' "Do you fancy being a High Court judge? Forget the whisper over a drink at your Inn or the traditional 'tap on the shoulder.' Dust off the CV and send in an application. And then prepare yourself for an 'interview' with a selection panel. This is the new world of appointing judges -- and today it hits one of the most senior tiers of the judiciary -- the High Court Bench.
An advertisement in The Times will invite applicants for appointment to the High Court (salary £162,000 a year) to fill an anticipated ten vacancies expected between April next year and March 2008, with another 15 to be kept on the 'reserve' list...There may be nervousness about how the commission will go about its task. But [the director, Baroness Usha] Prashar[,] emphasises that merit remains the touchstone and that it can be squared with improving diversity. Prashar insists that there will be no targets or positive discrimination...." More (Times Online 10.31.2006).
Those merit-based federal judicial appointments. "An investigation has revealed that two dozen federal judges contributed thousands of dollars to Republicans who 'helped place them on the bench,' Salon is reporting...." According to Salon, "White House spokesman Blair C. Jones said that 'potential nominees' recommended to Bush are not based on 'any consideration' of an individual's political contributions." More (The Raw Story 10.31.2006).
Judicial candidate ordered to stop using misleading ads. "Richard Redfern, a candidate for Rankin County chancery judge, is running misleading campaign materials and must stop the ads, a special committee said today...Redfern, a Richland lawyer and Rankin County Justice Court judge, uses the terms 'Judge Richard Redfern Chancery Judge' and 'Elect Richard Redfern Chancery Court Judge.'" More (Jackson Clarion-Ledger 10.31.2006).
Former judge running for judge can't use ads depicting him in robes. "The state Judicial Ethics Advisory Committee says a candidate for circuit judge shouldn't wear judge's robes in campaign literature and advertising if that candidate is NOT the incumbent. Former district judge Ray Spruell is seeking the circuit judge seat in the Second Judicial District in Jonesboro and asked for the opinion...." More (Today's THV 10.31.2006). Comment. The panel apparently felt using such a picture would misrepresent Spruell's present position or qualifications. Actually, it all depends. Certainly Spruell may present accurate biographical info in a brochure or on a campaign website, including, e.g., a picture of himself when he was sworn in as a judge, so long as the brochure/website makes it clear he's not currently a judge.
Perking up courtrooms. "Among the dozen figures posted on the back wall of [Judge Michael Dest's] San Bernardino County courtroom is comedian Bill Cosby, smiling while holding a glass of red gelatin cut into cubes. The rest are characters Lake Arrowhead artist Julie Cutler plucked from various magazines and pictures when she created [the 16-foot wide mural] 'The Jury' in 1992 [to cover the blank cinder-block walls in] Dest's courtroom...She said the characters relax people by poking fun at distracted jurors...'This is a picture of all the things jurors should not do,' Dest said. One woman is sewing. Three are reading and one is sleeping. One man is smoking a cigar while reading a newspaper...." More (Press-Enterprise 10.30.2006). Comment. Res ipsa....
Judges to keep visitor records. "The Seoul Central District Court will require its judges to keep lists of visitors coming to their offices to reduce the chances of bribery and influence peddling, the court said yesterday...Courts have been facing pressure to implement stronger ethics rules and better monitor the conduct of their judges following a corruption scandal earlier this year involving former Seoul High Court judge Cho Kwan-haeng...." More (Korea Times 10.29.2006). Comment. Maybe all judges should do this. If a judge knows that a visit by a prominent labor union leader will appear on the log, he might think twice about entertaining the fellow in his chambers.
Taking a judge hunting. "In 2003, a seaman named Robert Hanna sued his employer, [Rowan,] an offshore drilling company, after stairs on one of its ships collapsed beneath him and dropped him several feet to the floor. His case against [Rowan] went to trial in U.S. District Court in New Orleans in August 2005...What Hanna might not have known [when he settled two days into the trial] is that while his personal injury suit was pending, well before trial began, Rowan treated the presiding judge, Thomas Porteous Jr., to a $1,000 hunting trip...The court record contains no indication that Porteous disclosed the gift to Hanna or his attorney. But the judge reported it on his annual financial disclosure form...There is no evidence that Porteous[, who is on leave,] showed Rowan favorable treatment in court. Nor is the trip known to be a subject of the lengthy criminal investigation into the judge's conduct, including a personal bankruptcy case he and his wife filed in 2001 under false names, his handling of a hospital suit involving several of his friends, and his relationship with former bail bonds magnate Louis Marcotte III, who pleaded guilty to corrupting two state judges at the Gretna court where Porteous was a jurist until 1994...." More (Times-Picayune 10.29.2006).
Consultant says county should exploit courtroom gun battle. "[Carroll County's] infamous courthouse gunbattle, which pitted members of the local Allen family against law-enforcement officials inside a courtroom packed with about 150 people, occurred in 1912. But though all the blood was wiped away and the 50 or so bullets gouged out of the walls by souvenir hunters long ago, don't think folks here have forgotten that five people were killed and seven others wounded on that winter day [in Hillsville] nearly a century ago...Hillsville residents are now wrestling with a consultant's recommendation that they find a way to exploit the historical shootout to bring in tourists...'I guess if it were tastefully done, it might be all right...,' said Carroll Commonwealth's Attorney Gregory Goad, who is related to the court clerk who fired the second shot during the gunbattle...County Administrator Gary Larrowe said he supports the idea of encouraging a private company to use holographic technology and old photos of the shootout's participants to recreate the gunbattle. Tourists, he said, would be thrilled to sit in the courtroom as all around them realistic, holographic Allens and deputies shot it out. 'If you do not duck when they pull the trigger, then you are not alive,' he said...." More (Richmond Times-Dispatch 10.29.2006). Comment. This is a great idea that could spread like wildfire, helping efforts around the country to preserve old courthouses. X County could attract tourists with a holographic recreation of the Depression-era probate judge's having an affair in chambers with an assistant, then being run out of town on a rail, to be replaced by his wife. And Y County could stage a pageant depicting a lynch mob storming the courthouse and dragging a young defendant out to be hung from the big limb of the old courthouse oak tree. But it should be done tastefully.
Poll: people don't want politicos constraining judges. "Despite politicians' complaints about judges having too much power, two-thirds of Americans do not believe elected officials should have more control over federal judges, according to a new CNN poll released Saturday...." More (CNN 10.28.2006).
Chief justice is called a 'stooge.' "Negotiations over who will oversee the next elections in Bangladesh appear to have broken down, throwing the country into a political crisis...PM Khaleda Zia will hand over power to a caretaker authority over the weekend at the end of her five-year rule. But the main opposition Awami League is unhappy over the government's choice to lead the caretaker administration. He is former Chief Justice KM Hasan...[T]he Awami League says he is a BNP stooge...." More (BBC 10.28.2006).
Charge against provincial judge for drunken row at city hotel is stayed. "[Balwinder William Sundhu, a] Provincial Court judge arrested for causing a disturbance after a drunken incident in one of Vancouver's ritziest hotels has received a stay on a charge of causing a disturbance...The judge was diverted to an alternative measures program, which leaves a candidate with no criminal record...." More (Globe and Mail 10.28.2006). Earlier. Judge suspended following arrest at hotel for drunken behavior; A provincial judge's excellent adventure in the big city. Comment. This is standard treatment for any first-time offender for this category of offense...and properly so.
Lawyer receives one-year suspension for rudeness in court. "A lawyer noted for his erratic courtroom behaviour has been suspended from practicing in Singapore for a year after being rude to a judge...'I hope that...you will find peace, examine yourself and hopefully, one year later, when you come back, you will become a lawyer that we want to see in this court,' The Straits Times quoted Chief Justice Chan Sek Keon as telling M Ravi during the suspension hearing on Friday...." More (Monsters and Critics 10.28.2006). Comment. I'm surprised that, it being Singapore, the authorities didn't conclude that 10 strokes of the cane would be more effective than suspension, both as punishment and as deterrent. On the Singaporean model for punishment of criminal conduct, including its utilitarian, one might say Benthamite, reliance on caning as an effective deterrent, see Michael Hor, Singapore's Innovations to Due Process (2000). But see, Paul Robinson & John Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 Geo. L. J. 949 (2003). BTW, I'm not a utilitarian, but it's often worth asking, when considering possible solutions to a societal or institutional problem, what a utilitarian's approach would be.
Chicken Little was wrong: sky is not falling in MN. "Scott Newman is running for judge, and he's not shy about it. He sought the Republican endorsement and trumpeted it when he got it. He talks about issues that might come up in his courtroom if he wins. And he'll criticize rulings by higher courts. Minnesota's legal establishment is afraid of being challenged by candidates like Newman. But the Hutchinson attorney and GOP state representative is the only candidate this fall who has taken as much advantage of his new freedom since the U.S. Supreme Court loosened the rules on what they can say and do...While the Supreme Court opened that door, the state's legal establishment is seeking ways to close it. 'We're looking at an almost hysterical response by the judiciary to elections,' said attorney Greg Wersal, whose challenge to the state's strict limits led the nation's highest court to throw them out...." More (Kansas City Star 10.28.2006). Further reading. I agree with Mr. Wersal that the response of the organized bar and the judicial establishment has been hysterical -- and wrong. See, e.g., my extensive critical comments at SCOTUS declines review of USCA's case on judicial campaigns; Speaking of the MN judicial system; Blatz blazts politicization of judicial campaigns; Blatz again blazts judicial elections. See, also, Free speech is a 'bad idea'? and BurtLaw's Law & Judicial Elections.
Former judge loses appeal, will enter corrections facility. "Former judge James A. Weaver, twice convicted of drunk driving, lost his appeal and had his sentence of up to two years in a residential corrections facility upheld by the Iowa Court of Appeals on Wednesday. The sentence provides that Weaver, Muscatine, must reside at the state residential correctional facility in Davenport until he achieves the maximum benefit from an alcoholism treatment program...." More (Muscatine Journal 10.28.2006).
Top judge is embroiled in child support row with former lover. "A Pretoria High Court judge is refusing to pay child maintenance to his former lover, saying the paternity-test results showing a 99.99 percent probability that he is the father of her illegitimate son are inconclusive. Judge Ntsikelelo Poswa...is involved in a maintenance dispute with his former lover, Yolisa Maya, 48...Maya, a special legal adviser to Foreign Affairs Minister Nkosazana Dlamini-Zuma, [avers] that she and Judge Poswa were involved in a relationship in 1992 and that she conceived a child, who is now 13 years old...." More (The Independent 10.26.2006).
Role for elders in Aboriginal courts. "Aboriginal courts would be set up and sentencing judges forced to consider tribal punishment such as spearings, beatings and banishment under a landmark plan to recognise customary law proposed by the WA Law Reform Commission...." More (The West Australian 10.28.2006).
Judge halts plan to build controversial retirement village. "Victoria's top planning judge has arrested plans to build a controversial retirement village in Ivanhoe, in a move that could cost the high-profile justice millions of dollars. Justice Stuart Morris, president of the Victoria Civil and Administrative Tribunal, was facing a drawn-out legal battle from a couple who bought his former Ivanhoe home in 1999...." More (The Age 10.28.2006).
Judge is suspended for persistent and public intoxication. "The Louisiana Supreme Court on Friday suspended a state district judge in Grant Parish [Judge Allen A. Krake of Colfax] for six months and placed him on probation until his term ends as punishment for...'persistent and public abuse of alcohol, which manifested itself while performing his judicial duties'...." More (Times-Picayune 10.28.2006).
Judge alleges plan to kidnap her son. "A Jos High Court Judge, Justice Yargata Nimpar, has allegedly uncovered plans to kidnap her son attending a school in Lagos. Nimpar is handling the case between the former Speaker of the Plateau House of Assembly, Mr Simon Lalong and his successor, Mr Mike Dapianlong. The judge...said it was unfortunate that some people had to go to that extent to frighten her. Nimpar said she also knew the 'agents' of the 'principal agent' who wanted to lure her with a huge sum of money to make her judge the case in their favour...." More (The Tide - Nigeria 10.28.2006).
Son of judge is killed when car leaves road. "A Greenfield High School student died while driving home from a former classmate's wake...Seventeen-year-old Benjamin Culver, a Greenfield junior, was killed in a car accident Friday night...Police say Culver was wearing his seatbelt and don't suspect alcohol was involved in the crash. The 17-year-old is the son of Hancock Circuit Judge Richard Culver...." More (WTHR - Indiana 10.28.2006).
Annals of Clintonian constructionism -- held, Swede judge didn't pay for 'sex.' A year or so ago the Swedish judicial establishment was rocked by three separate incidents involving Swedish judges separately caught visiting bordellos. See, our extensive comments at Those "randy" Swede (not Norwegian) judges. Now comes word that one of the judges, an appeal court judge from Malmö who was fired after getting caught visiting a brothel, has won an appeal and will get his job back, with retroactive pay to September of 2005. Specifically, a Malmö district court has ruled that while the judge masturbated while "a girl" (I assume she was of legal age) was next to him, the judge did not commit a crime, since he didn't actually pay for "sex," only masturbation, which does not count as sexual relations in Swedish law. More (The Local 10.27.2006). Compare and contrast. "'It all depends,' said the president, 'on what the meaning of the word 'is' is. If the -- if he -- if 'is' means is and never has been, that is not -- that is one thing. If it means there is none, that was a completely true statement....'" Google Answers.
Judge is admonished for visiting inmates. "State Supreme Court Justice Richard Sanders was admonished Thursday by his peers for violating judicial ethics rules by visiting detainees at a state sex-offender treatment center, including some patients who had cases pending before the court. In a unanimous ruling, nine lower-court judges sitting in as Supreme Court justices pro tem upheld the state Commission on Judicial Conduct's admonishment of Sanders...." More (Seattle Times 10.27.2006).
Justice Thomas complains about aggressive judges. "On appellate judges' manners: Thomas said he disapproves of what he calls increasingly aggressive questioning of attorneys by appellate judges from the bench. Thomas said that as a young state attorney general arguing before the Supreme Court of Missouri, he recalled justices who 'actually allowed me to make my argument. They listened to what I had to say...Nor did I ever feel I had not been heard or did not have my day in court...It seems fashionable now for judges to be more aggressive in oral arguments. I find it unnecessary and distracting...I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers...I think the judges need to listen if the arguments are to be effective.'" More (Law.Com 10.27.2006). Comment. I agree completely. With most justices who are overactive or hyperactive during oral argument, it's mostly "about them." Too many justices -- too many people -- are overly enamored with the sounds of their own voices. Compare and contrast. "Red had the greatest of ears,' [Bill] Russell told USA Today in 2004. 'After he talked to a player four times, he knew how to communicate with him. And thatís important. And you canít treat everybody the same. If you treated everybody the same, theyíd all get the same salary. Each year after I got in shape, Red didnít have me scrimmage anymore. He said heís not going to play me 46 minutes a game and wear me out in practice, too. So when we started scrimmaging, Iíd go sit on the scorerís table and drink tea.'" Obituary for Arnold 'Red' Auerbach, Boston Celtics coach, dead at 89 (N.Y. Times 10.30.2006). I had a one-eyed coach, Leon Brockmeyer, who "saw" better than most people with two eyes, who listened to you even if you didn't talk much, and who -- despite being a master at building teams -- treated each player differently (because we're all different), just as Auerbach did. See, my mini-essay of remembrance and appreciation.
When a judge sues for libel. Illinois Supreme Court Justice Robert Thomas' defamation suit against the Kane County Chronicle got under way this week with jury selection. Thomas, a former pro football player, claims Bill Page, a columnist, defamed him in several columns in 2003 that accused him of playing politics in a disciplinary case involving a prosecutor. More (Chicago Tribune 10.26.2006). Earlier postings. a) Chief Justice doesn't get mad -- he sues; b) Illinois judges opine on key issue in Chief Justice's defamation suit. Comment. For our postings on defamation suits filed by other judges and an explanation of our minority view that the cause of action for defamation ought to be abolished, see: Newspaper attacks $2 million libel verdict awarded trial judge - Court upholds dismissal of judge's libel suit against TV station - Illinois judges opine on judicial privilege - Spicing up the courts. From these postings, it is clear that we hope the judge loses. Nothing personal, judge. We base it on principle, just as you presumably base your suit on principle. As we've said before, even if the judge wins with a jury, we believe the victory won't survive on appeal. Update. First day of testimony (Chicago Sun-Times 10.28.2006). Editor and judge both testify (Chicago Tribune 10.31.2006). Jury awards justice $7 million (Chicago Sun-Times 11.14.2006).
Groups seeking to oust judges in retention elections. Three news reports we've come across in a few days of groups seeking to oust sitting judges up for retention votes:
a) In Iowa a PAC called Children Need Both Parents is asking voters not to retain District Judge Charles Pelton, 66, who has been a judge since 1974. The group "claims he has not done enough to encourage divorcing couples to share physical custody of their children," but Pelton says the group is "dead-wrong" in its criticism of him. More (Quad City Times 10.20.2006).
b) A "mystery group" called The Committee to Retire Judge Marquez is seeking the ouster of Judge Jose D.L. Marquez, who has been on the Colorado Court of Appeals for 18 years. More (Denver Post 10.23.2006).
c) "Utah deer hunters have a new target in their sights: 3rd District Judge Leslie Lewis. Members of the hunting community have started a grass-roots campaign to oust Lewis after she ordered that a defendant's brother be arrested for expressing displeasure with her views on hunting during a hearing last February. Opponents have launched a Web site, www.firejudgelewis.com, that contains a link to the in-court video of the February episode, which has been posted on the Web site YouTube...." More (Deseret News - Utah 10.26.2006). Transcript. Update. Security is beefed up as judge receives death threat (Deseret News 10.28.2006).
Comment. MN's system of judicial selection occasionally -- indeed, very rarely -- results in an attorney filing to run against a sitting judge whose term is expiring; when that rarity occurs, the voters almost invariably "re-elect" the sitting judge, not atypically by a margin of, say, 3 to 1. Notwithstanding this history, the MN Judicial Establishment, in an almost hysterical over-reaction to the recent "judicial free speech" decisions of the U.S. Supreme Court and the Eighth Circuit, is toying with the idea of proposing an amendment to the MN Constitution to substitute the so-called "Missouri Plan" (misnamed "merit selection"), which provides for periodic retention elections. See, A debate on judicial campaigns and comments and embedded links. Supporters of the Missouri Plan believe it will better insulate sitting judges from removal for unpopular decisions and thereby enhance judicial independence. They should be careful what they wish for. Last year in Pennsylvania, people angry over judicial pay raises targeted two Pennsylvania Supreme Court Justices who were up for retention and succeeded in removing one of them and almost removing the other. See, Justice loses retention election. It is because of instances like this that many judges around the country prefer the possibility of facing a specific challenger in an election to the Missouri Plan's retention elections. They reason that some (many?) voters might vote no in a retention election as a kind of protest against judges in general whereas those same voters might favor the incumbent if faced with a choice between him/her and a specific opponent with identifiable flaws of his or her own. In other words, the retention system may present a far graver threat to judicial independence than MN's benign system of elections.
Supremes rule on same-sex unions. "It was a 4-to-3 decision, but all that divided the two sides in yesterdayís New Jersey Supreme Court ruling on how the state should treat gay couples was a single word: marriage. 'Whatís in a name?' Justice Barry T. Albin mused in the majority decision. The answer, it seems, is a lot. All seven justices were in vehement agreement that gay and lesbian unions must be guaranteed all of the rights and benefits that come with heterosexual marriages. And all agreed that it was the courtís role, in interpreting the State Constitution, to ensure that gay partnerships were in every legal particular equal in status to marriage. But the vocabulary, the majority continued, must be committed to politics...." More (N.Y. Times 10.26.2006).
Judicial selection in Australia. "Australians...should be particularly concerned about how governments appoint judges. The process of appointing judges is not transparent...Governments assert that they appoint judges on the basis of 'merit.' But they are not forced to say what 'merit' means. The term is almost infinitely elastic. As former Queensland judge Geoffrey Davies said: 'No word is more used or abused in this context than merit.' It also tends to conceal prejudices about what judges look like. Merit becomes a proxy for an unstated requirement that new judges look like old judges, drawn from a particularly narrow section of the candidates who possess the skills and personal qualities necessary for judicial office...." From a piece arguing for the use of screening/appointments commissions. More (The Australian 10.26.2006). Comment. Commissions, too, are "political." There is no escaping politics in judicial selection. We like the MN plan, which has been in force for many years, a benign system of direct elections, with most judges being appointed by the governor and with elections occurring only when an attorney files against a sitting judge seeking another six-year term. It is rare for an attorney to do so.
Portrait of a slow judge. "For judge Terry Sheahan, the wheels of justice do not just turn slowly, they barely move at all. Justice Sheahan, the president of the NSW Workers Compensation Commission, has handed down just four judgments this year. And two of those were a year in the making. While this makes Justice Sheahan one of the nation's slowest judges, he is also one of the highest paid. Thanks to a special pay deal he struck with the NSW Labor Government when he was appointed to the commission in 2001, he earns $321,670 a year. This puts Justice Sheahan, a former president of the NSW Labor Party, state attorney-general and Labor MP for 15 years, on the same income as the second-most senior judge in the state, Court of Appeal president Keith Mason. It also means that each of his four judgments cost the NSW taxpayers $80,250 in judicial salary. This comes to $8935 per page -- including header notes...." More (The Australian 10.26.2006).
Wanna be a law clerk for a judge...in Iraq? "Visiting University Law Prof. Linda Malone is one of three law professors working in the U.S. Department of Justice Regime Crime Liaison Office. The DOJ Liaison Office advises the Iraqi tribunal judges in their decisions, including deliberations over former Iraqi President Saddam Hussein's sentencing. A law professor at William & Mary's Marshall-Wythe School of Law, Malone is teaching a course entitled 'The Iraqi Tribunal Clinic' at the University Law School this year and also oversees students who are acting as law clerks to the Iraqi judges...." More (U. VA. Cavalier 10.26.2006). Comment. Even kangaroo courts need law clerks.
Scalia on judicial independence. "[Justice Antonin] Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges. 'You talk about independence as though it is unquestionably and unqualifiably a good thing,' Scalia said. 'It may not be. It depends on what your courts are doing.' Scalia added, 'The more your courts become policy-makers, the less sense it makes to have them entirely independent.'" More (Forbes 10.21.2006). Comment. I think Scalia makes a good point. Too many judges use "judicial independence" as a shield from criticism. If you hear a judge raise a hue-and-cry about threats to judicial independence, pay no attention to him unless he also talks about judicial accountability. See, my 2000 essay, BurtLaw on Judicial Independence and Accountability.
Ex-judge stole to pay for nude cleaner. "A former London magistrate...Michael Lee, 59, paid up to $494 an hour for the call girl to dust and vacuum wearing nothing but rubber gloves. He enjoyed watching her as she polished his dining table, ironed his clothes, washed the dishes and made the bed at his home in Lancashire. But the obsession drained his bank account and he began stealing money from the firm of which he was financial director. After siphoning off $405,000 to pay his cleaner, his conscience got the better of him and he handed himself in to police...." More (Daily Telegraph - AU 10.25.2006). Comment. In all, he paid "more than $618,000" to the woman to keep his house clean. But a neighbor is quoted saying he should ask for his money back because "His place was absolutely filthy." Viewers of Seinfeld may recall the episode in which Jerry hires a nude housecleaner.
Former Wisconsin (!) judge is accused of trading drugs for sex. "A former municipal court judge is accused of forcing a homeless woman to have sex with him in exchange for access to her own prescription medications. The woman told police she was a sex slave on the man's property in Franksville...Neighbors said the former judge has taken in homeless people for years and given them work on his farm...A woman told authorities the former judge allowed her and her boyfriend to stay in a smashed-up van on the property. She told investigators she had to sign a contract that required her to turn over her prescription drugs to the man and he forced her to have sex with him in order to get them...." More (Milwaukee Channel.com 10.25.2006) Comment. There's allegedly at least one videotape backing up the allegations. More and more, people -- including judges -- are getting "caught on tape," sometimes by their very own cameras.
Lithwick on Scalia on judicial reporting. Dahlia Lithwick has posted an interesting piece criticizing criticisms of judicial reporting made recently by several Justices of SCOTUS. Justices Scalia and Alito made their remarks at a recent Italo-American event. Scalia reportedly said, "The press is never going to report judicial opinions accurately." Alito complained about the role of the Internet, including blawgers, in reporting judicial decisions and criticizing judges. Last spring Justice Anthony Kennedy complained about editorialists who "misinterpret" the court's reasoning. Lithwick opines that "since the justices have systematically made public education more difficult -- by denying video and almost wholly limiting same-day audio coverage of the court's proceedings, as well as limiting access for bloggers -- it is hypocritical in the extreme to criticize the constrained reporting that results. To be sure, the court now releases same-day transcripts of oral arguments, and my guess is that legal reporting will now improve across the board as a consequence. But that merely proves the point: Less secrecy makes for more accurate coverage...[I]f the justices want Americans to be educated about the court, they should encourage the fullest reporting possible...The justices can keep taking swipes at the Internet, imaginary editorialists, and phantom tabloid reporters for making them look bad. Or they can recognize what makes them look even worse: themselves." From Dahlia Lithwick, The Supreme Press Critics -- Scalia, Alito, and Kennedy take on the Fourth Estate." More (Slate 10.24.2006). Comment. Is it possible that judges in general just don't want to be criticized or even necessarily to be understood -- that instead what they want most is to be loved, praised, deferred to, respected, honoured? Putting aside rhetorical questions, I must say I tend to agree with Scalia's suggestion that "the press" rarely does even a barely adequate job of covering judicial decisions.
Homeless man attains celebrity as court-watcher. "'Indecent assault cases are the easiest to understand. They don't use a lot of legalese and are fairly accessible, even for beginners. But these cases are also popular, so they can be hard to get into at times,' Asozan tells Shukan Post. 'Another good way is to find a judge you really like and follow [him] around with every case. And you really should follow a case right from its opening hearing. When you watch a TV series, you want to see every show, right? Why should a court case be any different? Mind you, court hearings can be a bit hit-or-miss when it comes to fun. Unlike TV, though, if you're stuck with a boring case, you can always find another one to watch.'" From a profile of 32-year-old Daifunka Asozan, who "claims to have sat in on thousands of court cases at the Tokyo District Court over much of the past decade. More (Mainichi Daily News - Japan 10.25.2006). Comments. a) Most court-watchers are retired people, mostly retired men. Visit any large urban courthouse and you'll find them. They often know as much about juries as so-called jury profilers and jury-selection consultants. Smart trial attorneys consult with them. We think it's a great way for retired people to keep active: walk to the bus stop, ride downtown, go to the clerk's office or the administrator's office and find where the juicy trials are, attend them, talk with fellow trial watchers, eat lunch, etc. b) But kids, usually children of judges or lawyers, have been known to watch trials as often as they are free to do so. See, e.g., this profile of "judicial prodigy," 8-year-old Shifa Khan, who is lucky to have a father good enough to set a fine example and wise enough to encourage her in this way. It all reminds me of something I wrote about one of my favorite appellate judges, and a very great one at that, Justice Lawrence R. Yetka, in my essay on him that is part of the volume published in 1996 by the MN State Law Library on his career. See, Burton Randall Hanson, "A Court's Best Friend - Some Observations on the Political and Judicial Career of Lawrence R. Yetka - An Essay in Honor of a Half-Century of Service to the Cause of Justice in Minnesota and the People of Minnesota," The Political, Professional and Judicial Career of Lawrence R. Yetka (MN. Justices Series No. 9, 1996). Here's the relevant excerpt:
Unlike his friend, the late Justice James C. Otis, who was "seemingly born with a gavel in his hand," Justice Yetka wasn't born with a gavel in his hand. One might say, however, that he had politics in his blood and law books to sit on. His father, who was one of the great influences on his life, practiced law in Cloquet, was active in the Nonpartisan League, was an early leader of the Farmer Labor Party, and served as city attorney, county attorney, and state insurance commissioner. Justice Yetka's father spoke the language of politics and public service to his children, making it clear that through public service they paid their "civic rent." And he taught not merely by precept but, more importantly, by example. Young Larry "caught the bug" early on, listening to Floyd Olson on the family's Echo Radio in 1932. At age 10, in 1934, he delivered political campaign literature around town and also started hanging around his father's law office, learning in the process not only how politicians thought and acted but how lawyers thought and acted.
Judicial police blotter.
a) Judge's daughter held after fatal wreck. More (Houston Chronicle 10.24.2006).
b) Judge's son faces charges in fatal DWI crash. More (Staten Island Advance 10.24.2006).
c) Judge's girlfriend due in court. More (WREG 10.24.2006).
d) Former judge is jailed on sex allegations. More (Milwaukee Journal Sentinel 10.24.2006).
e) Not guilty pleas for judge and son accused in fight with police. More (WREX 10.24.2006).
f) Charges against judge stemming from party are dropped. More (Rockford Register-Star 10.26.2006).
Judges are accused of being in cahoots with drug lords. "The Supreme Court (JCE) will address the denunciations by the National District Prosecutorís Office and lawyers who accuse judges of being in complicity with drug trafficking, and itís the second time this year that similar allegations are voiced against Dominican judges...." More (Dominican Today 10.24.2006).
Does mafia have hand in judicial system? "Organized crime has an increasing number of contacts amongst the judiciary in this country -- that's according to a new report released by the Czech counter-intelligence service BIS this week...[T]he report states that organized crime in the Czech Republic is paying off people working in the judiciary, as well as the police and the state administration...[The report] state[s] that district courts are most susceptible to corruption. For example, judges may accept payment in exchange for lightening prison conditions for those found guilty of crimes...." More (Radio Prague 10.25.2006).
How a chief justice shaped a nation. "As President-elect Eisenhower assembled his administration in the weeks following his election in 1952, he passed over for a Cabinet post Earl Warren, the California governor and vice presidential candidate on the ill-fated Dewey campaign four years before, but did promise him the 'first vacancy' on the US Supreme Court. Meanwhile, the Supreme Court justices had been unable to reach agreement on Brown v. Board of Education, the major civil rights case facing the highest court, and in late 1952 agreed to put it over until the 1953-54 term. But in September 1953, as the term was beginning, Fred Vinson, the genial but indecisive chief justice, died unexpectedly...." From a review by Michael Kenney of J. Newton, Justice for All: Earl Warren and the Nation He Made (2006). More (Boston Globe 10.24.2006).
Mercantile court. "Judge David Mackie QC has been selected as the first head of the London Mercantile Court, which opened its doors last week (17 October) in an effort to resolve less complex cases more quickly. Mackie, the former head of Allen & Overy's litigation practice before he became a judge two years ago, will head the new court which is situated at the Royal Courts of Justice. The London Mercantile Court has been established under new rules which came into effect on 1 October. More (The Lawyer - UK 10.24.2006).
Nine new religious 'monetary courts.' "Rabbi Attorney Moshe Be'eri [is] the man behind the Beit Shemesh court and eight similar [religious monetary courts] around the country [that provide] an alternative to the civil courts system...Be'eri hopes to attract both the religious and non-religious publics. 'We promise to arrive at a ruling within three months, or six months at the most, with the agreement of the parties. We also try to persuade the litigants to avoid using lawyers, since this generally prolongs the process and makes it more expensive,' Be'eri says...." More (Ha'aretz - Israel 10.25.2006).
Seeking tougher, churchgoing judges. "The [MA] Governor's Council, also called the Executive Council, is made up of eight councilors who...approve appointments made by the governor such as judges, notaries and justices of the peace...Philip C. Paleologos...a Republican, is running for First District councilor...If elected, he said he would do a better job 'scrutinizing judicial candidates.' Rather than focusing on their academics and careers, he said he will consider if a candidate is a parent, a community volunteer and a regular church-goer. 'I am going to go to the core,' said Mr. Paleologos...." More (South Coast Today - MA 10.24.2006).
Gubernatorial candidates spar over judicial selection. "Republican gubernatorial challenger Jim Barnett says he wants to see a change in how Kansas Supreme Court justices are appointed, but Democratic Gov. Kathleen Sebelius said she favors the current system...Barnett argue[s] that having attorneys involved in the Supreme Court nominating process creates a conflict of interest...Barnett proposed a system that mirrors the federal system, in which the governor would appoint justices and the Senate would confirm them, with no nominating commission...." More (Hutchinson News 10.24.2006).
Judge says 'Chinese all look the same'; defendant says all Scots do. "A judge has provoked outrage among race relations groups by claiming that all Chinese people look the same. Sheriff Margaret Gimblett cleared Hui Yu, 23, a student from Beijing, of [driving without insurance] after dismissing evidence from two police officers identifying him. She told Greenock Sheriff Court: 'Without wanting to be derogatory in any way, sometimes it is said that all black people look the same at first glance, and the same can be said that all Chinese people can look the same to a native Scot. Itís only when you have time to look that you begin to see the differences...This trial raises interesting issues because, when foreigners are in a country, they look different from the native inhabitants of that country and there can be a difficulty -- even with experienced observers...In this case, I have no doubts that the police officers gave evidence that they thought was correct. However, I have great doubt about the reliability of that evidence and I have to give [the defendant] the benefit of the doubt.'" More (Times - UK 10.23.2006). Comment. Some people are criticizing the judge for her remarks. Not Mr. Hui. He's quoted saying, "It is true that people from one nationality or race can look the same to people from another nationality or race. It is the same for Chinese people -- we find it quite hard at first to tell the difference between groups of Scots."
Vow to get tougher on judges. These days nearly every candidate running for office (I was an exception) wants voters to think he or she will be tough on criminals. Judges running don't often say it directly but they like the voters to think that, and so they'll trumpet their experience as prosecutors, their endorsements by prosecutors, etc. Down in Alabama two candidates for the state supreme court want voters to think they'll be tough on judges: Sue Bell Cobb, who is running against Chief Justice Drayton Nabers, says she's concerned about rule changes that require judges be informed of the names of people who file complaints against them. She argues that the changes have discouraged complainants, who fear retaliation. Nabers wants it known, though, that he's against judicial misconduct, too. More (AL.Com 10.23.2006).
High court judge supports same-sex marriage. "Justice Michael Kirby has used his experience as a gay man to highlight the legal discrepancies unfolding as same-sex marriage spreads to several countries. In a speech to the National Family Law Conference in Perth yesterday, Justice Kirby called for equal treatment under one law for homosexual and heterosexual unions. His comments come as the ACT Government revives its plan to legalise same-sex unions after legislation that would have allowed homosexual couples to enter into civil unions was disallowed by the Federal Government in June...." More (Sydney Morning Herald 10.23.2006).
Children's room at courthouse. "The Rotary Club of Fairhope recently became aware that District Judge Carmen Bosch had begun a project of furnishing a room in the Bay Minette courthouse as a 'place of sanctuary' for young children who must accompany their parents to Family Court...[Bosch] had already begun to make [the room] more child-friendly with a child-size table and chairs when the project was discovered and taken on by the Rotary Club. Club board member Bob Callahan, who spearheaded the effort, purchased a rug and other furnishings for the room, and club members were invited to donate books, puzzles, coloring books and crayons to occupy children while they wait...." More (Mobile Register 10.23.2006).
Niqab in court. "Ginnnah Muhammad, 42, wore a niqab -- a scarf and veil that cover her head and face, leaving only the eyes visible -- during a [small-claims] court hearing this month in Hamtramck, [MI]. She was contesting a $2,750 charge from a rental-car company. District Judge Paul Paruk told her he needed to see her face to judge her truthfulness and gave her a choice: take off the veil while testifying or have the case dismissed. She kept it on...." More (Seattle Post-Intelligencer 10.23.2006).
Karen Hughes compares Condi Rice to Amara bin Al-Rehman. "Karen Hughes, undersecretary of state for inter-faith harmony,...told a group of Muslim diplomats and journalists at a State Department dinner that Condoleezza Rice reminded her of Amara bin Al-Rehman...." More (NewAmericaMedia 10.23.2006). Comment. The woman in question was a 7th century Muslim "jurist."
AARP urges voters to end mandatory retirement of judges in Hawaii. "AARP Hawaii urges you to vote YES on ballot question #3 to remove the mandatory retirement for judges from our State Constitution. Mandatory retirement for judges is age discrimination, pure and simple. It shouldn't be tolerated, any more than we can accept discrimination based on race, gender, disability or sexual preference. Age should never be the sole criterion limiting a person's ability to serve. Our judicial review system has adequate safeguards in place to ensure the fitness of our judges. Unlike federal judges, who have no age limit and are appointed for life, Hawaii judges have either ten-year terms or six-year terms. Voting 'yes' does not change this. Judges still have to reapply and undergo the merit-based performance review...." More (Molokai Island Times 10.21.2006). Comment. For six years I've been publicly urging the repeal of all state laws and state constitutional provisions mandating the retirement of state judges on the basis of age. I expressed my views in an essay/position paper I wrote in 2000 in my general-election campaign for chief justice in MN. See, BurtLaw on Mandatory Retirement of Judges. That essay is one of the most-visited pages in my original law blog, BurtLaw's Law and Everything Else. Term limits of all kinds -- those based on age and those based on numbers of terms served -- are wrong, but particularly for judges. In general, one gets better at judging the more one does it, the longer one does it, and the older one gets. Justice Holmes began judging in Massachusetts, on its supreme judicial court, at around age 40, eventually becoming chief justice. After 20 years doing that, he was named by T.R. to the U.S. Supreme Court, serving it as an associate justice from around age 60 to around age 90. In my opinion he didn't become a great judge until his late 70's. With term limits and mandatory retirement, our country's greatest judge would never have achieved the judicial greatness we attribute to him. Term limits, including mandatory retirement, are especially uncalled for in states like MN, in which judges are subject to challenge in popular elections every six years. Attorneys are free to run against sitting judges when their terms are up, and the voters are free to limit the terms of judges they feel have served long enough by simply voting for the challengers. Judicial term limits, including mandatory retirement, are -- paradoxically -- both undemocratic and anti-aristocratic. They are anti-aristocratic because they target our "elected aristocrats," i.e., judges (read The Federalist if you don't know what I'm saying). And they are undemocratic because they say to voters, "Although you are sovereign, you may no longer elect Justice Mini Holmes, no matter how good he is, no matter how good you think he might become, no matter how good in fact he might become, because our arbitrary term limits say you may not." And so we say, a) don't adopt judicial term limits based on either age or numbers of terms served (something the voters of Colorado are being asked to do in the Colorado judicial-term-limits initiative), b) abolish any judicial term limits that are in place (something the voters in progressive Hawaii now have a great chance to do), and c) retain direct judicial elections of the Minnesota variety. BTW, while the ACLU of Hawaii apparently joins AARP of Hawaii in urging abolishing mandatory retirement, it ought not surprise anyone that the organized bar in Hawaii apparently opposes the amendment. As Emerson wrote, "[L]awyers...are a prudent race though not very fond of liberty." Ralph Waldo Emerson (Journal 04.1850).
Lawyer punished for 'Lord!' outburst in court. "On Oct. 4, the first day of the latest trial, [Judge Michael] Helms stopped [Attorney Raymond] Marshall during the questioning of one of the witnesses. Marshall said 'Lord,' reared back in his chair with outstretched arms, cast his eyes upward and turned to the audience, Helms said." Judge Helms, whom Marshall earlier had unsuccessfully tried to remove from the case in which the outburst occurred, held Marshall in contempt. Now he has sentenced Marshall to two days in jail, temporary loss of his license, a psychologist's exam, and 70 hours of community service. "Marshall, who is also a minister, said the remark was the beginning of a prayer. He apologized to Helms and said he did not intend to be disrespectful or for his remark to be heard by others." More (Washington Post 10.21.2006). Comment. Without commenting directly on the specific case, because I don't know all the facts, I will say that, personally, I've never admired the hold-them-in-contempt "style of judging," if you can call it that. More often than not, in my opinion, a judge who holds a spectator in direct contempt for something like not turning off his cell phone or an attorney for engaging in minor courtroom histrionics risks creating an image of courts that leads ordinary people to legitimately view courts with contempt. Although not directed at this specific type of situation, I like what Prof. Steve Lubet of Northwestern University Law School said about a federal judge down in Galveston, Texas named Samuel Kent who received favorable publicity for obnoxious behavior toward attorneys appearing in his courtroom: "There is a name for that sort of behavior, and it isn't adjudication. It's bullying. It smacks of nothing so much as the biggest kid on the playground picking on the smaller kids who are too browbeaten to fight back." More (Jewish World Review 08.16.2001). I don't think "bully behavior" by anyone, including a judge, has any place in or out of court. Whereas The Soup Nazi (SeinfeldScripts.Com - Episode No. 115) may be able to get away with "bully behavior," as long as the soup-masochists keep coming back, a common law judge ought not be allowed to get away with it. Indeed, it's BurtLaw Rule-of-Thumb #139 for avoiding judicial discipline: Avoid using the contempt power altogether. The rule is a corollary of another rule, one we like to call, in our clever way, The Golden Rule, an obscure little rule that prompted us to oppose from the very outset the Bush Administration's nice little plan to allow the use of torture in interrogating and summary justice in trying "enemy military detainees" in its "War on Terror." Read on....
Judge's seizure of cellphone leads to lawsuit. "Presiding over a traffic docket recently, Montgomery County District Court Judge Brian G. Kim ordered his bailiff to confiscate a cellphone. It wasn't just any cellphone. It belonged to a Montgomery County police officer. And its seizure has become the latest flare-up in the simmering feud between the judge and police. The confiscation -- the phone was returned a week later -- prompted the officer to file a lawsuit against the judge and led Police Chief J. Thomas Manger to write a letter to Kim's superior asking what right the judge had to seize the phone...'At the time of the taking, [Ragan] was not using the phone, and had merely removed the phone from his belt in preparation to make a call outside of the courtroom,' according to the Oct. 11 complaint the officer filed against Kim...." More (Washington Post 10.21.2006).
Inevitable activism. "Everyone seems to oppose judicial activism these days. If you don't like the role the courts are currently exercising, you find a way to call it 'activism' and argue that the change you want would be 'restraint.' But if the status quo pleases you, you insist that what the judges are doing is not 'activism,' rather, nothing more than what the law requires. Or you concede the existence of activism -- but contend that changing things will only unleash a new form of far more virulent activism. There was a time -- not all that long ago -- when we openly praised the activist judge and scoffed at the stingy jurist who invoked notions of judicial restraint. That restraint was a smokescreen for some nasty hostility toward individual rights, we'd say. Now we all seem to love to wrap ourselves in the mantle of the new fashion. But that fashion comes at the price of candor...." -- Law school prof Ann Althouse, writing in Wall Street Journal. More (WSJ via Althouse Blog 10.21.2006).
Day in life of small-claims jurist. "[W]atching the lawyer pretend to believe the judge was going to change his mind was funny. But, even more humorous was the notion that a case decided over a 100 years ago would compel the judge to admit he was wrong. It reminded me of an episode of the Rockford Files where Jim's attorney Beth Davenport was trying to convince the judge to let him off the hook for something stupid he'd done...." More (Ernie the Attorney 10.21.2006).
Appeal panel vacates reprimand of judge-pal for supporting Miers. "A reprimand against Texas Supreme Court Justice Nathan Hecht was dismissed Friday after a three-judge panel found he did not violate state ethics rules when he assisted the Bush administration's unsuccessful bid to place White House counsel Harriet Miers on the U.S. Supreme Court a year ago...." Two of three judges reasoned that Hecht didn't violate the rules because they aren't clear. A third reasoned he violated the rules but the applicable rules are unconstitutional. More (Houston Chronicle 10.21.2006). Comment. When the admonishment was announced last May, I wrote: "I'd guess that if the U.S. Supreme Court were to address the issue, it would vacate the admonishment, relying on the judicial free-speech decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002)." Earlier. If Harriet Miers marries another judge, will the wedding be at SCOTUS? - Sitting judges to testify in support of Alito -- is that okay?
Judge admits casting two absentee ballots. "A veteran Republican election judge in St. Louis County has acknowledged to election officials that he illegally cast two absentee ballots for the Nov. 7 election. County Election Board Chairman John Diehl said the judge was told Friday that he can no longer work at the polls on Election Day. Evidence of the man's two votes will be turned over to county prosecutors, who will be decide whether to take legal action, Diehl said...Diehl added that the election judge was elderly, and told election officials that he hadn't meant to vote twice...." More (St. Louis Post-Dispatch 10.21.2006).
The end of the 'Legal Follies.' "The theme of the 15th Legal Follies, set for Feb. 24, 2007, is 'Thatís All, Folks.' Prairie State Legal Services announced Thursday that next yearís Follies will be the last one...The popular annual stage production features local judges, attorneys, courthouse employees, politicians and some media people singing, dancing and acting in silly spoofs and satirical skits, some of them in hilariously bad taste...The show served to humanize judges and attorneys in the community. They gave generously of their time and talent to raise money for Prairie State, an agency to which some of them already donate professional services. They helped the community laugh at itself, too...What are we going to do without the Follies to put it all in perspective? More important, how will members of the legal community handle not having a socially acceptable outlet for their oddball senses of humor and need to show off?" More (Rockford Register Star - Opinion 10.21.2006).
Justice talks of 'dialogue of the deaf.' "Supreme Court Justice Anthony Kennedy, speaking in the city where his legal career began, steered clear of his court and its work but had much to say about America's inability to convey democratic ideals to a mistrustful world...'The world of Islam has a demeaning and false stereotype of us, and we have an even more demeaning and false stereotype of them,' Kennedy said, without specifying the shortcomings on either side. The result, he said, is a 'dialogue of the deaf.'' Kennedy went on to suggest that the language of the law -- 'a language of idealism...a language of honor' -- is one avenue of international bridge-building. He referred to his discussions with judges from other nations who, he said, are eager to establish independent judicial systems modeled on the United States and Britain...[H]e appeared to refer to a bill that President Bush signed earlier in the day legalizing the administration's rules for the imprisonment and interrogation of foreign captives, and overturning key portions of a Supreme Court ruling in June...[when he] referred admiringly to a friend who was a judge on Fiji's high court during a period of insurrection. 'He refused to suspend the writ of habeas corpus and was taken away by the military,' Kennedy said...." More (S.F. Chronicle 10.21.2006).
Judge uses ruling to slam critics of village justices. "In the face of a critical, three-part New York Times exposé and upcoming legislative hearings in Albany, a South Nyack village justice has fired a volley in defense of the state's town and village courts. In People v. Morrison, Village Justice Dennis E.A. Lynch wrote that his denial of an unopposed motion for dismissal of a charge levied against a man allegedly caught in possession of a half-smoked marijuana cigarette symbolizes the dedication of the oft-criticized and underfunded local magistrates...." Rockland County District Attorney Michael E. Bongiorno is quoted as criticizing the justice for using the case as a "forum to deal with extraneous matters." He also is quoted as saying that, if anything, the Times exposé "probably understates the problem." More (N.Y. Law Journal 10.21.2006).
The shadowy world of proctors and their insular courts. "Wearing a cap and gown, you are led into a small room deep inside the Universityís central administration complex. You are told to don your cap and enter another room. Then the interrogation begins. Oxford Universityís disciplinary process has come under fire from students who have criticised it for being excessively confrontational and opaque. Patrick Foster, who was sentenced with rustication last year, said, 'The disciplinary panel doesnít give the impression of being impartial or independent in any way. There is little pretence that the panel are independent arbiters, rather than representing the institution.' Another student who was taken to the Proctors said, 'They sit there exchanging notes. As they interview you, the scale of what you have done has become blurred.' The Student Disciplinary Panel, made up entirely of internal dons, has the power to rusticate students for whatever length of time it sees fit, expel them permenently or issue them with a fine of unlimited size...." More (Oxford Student 10.21.2006).
Courtroom comedy. "The latest production by the Fraser Valley Fine Arts Centre and Heritage Valley Resort, Disorder in the Court, is a crowd-pleasing mix of improvisational comedy and sketch-like humour that molds together to become an evening of laughs, disco dancing and audience participation...The story (what little is actually scripted) involves the trial of a woman accused of murdering her rich husband. How he died, what he was killed with and how he became rich (he invented urinal pucks the night I attended) is all up to the audience. Two rival and equally incompetent lawyers battle it out as witness after weird witness testifies...Add a gourmet buffet to this great evening and you have the recipe for a long, successful run...." More (Abbotsford News 10.21.2006). Comment. Believing that a) Law can learn from Art and b) we need to think of ways to keep courts competitive with other entertainment venues, we suggest that courts experiment with adding "gourmet buffets" that would allow jurors to mingle during lunch breaks with the judge, the lawyers, the witnesses, the parties and the members of the public.
Brazilian cleaner who blackmailed judge in love triangle gets prison. "A Brazilian cleaner at the centre of a lurid blackmail case involving two immigration judges was jailed yesterday for 33 months. The recorder of London, Peter Beaumont...jailed [Roselane Driza] for 30 months for blackmailing J and a consecutive three months for stealing the sex videos from Mr Khan. Driza's solicitors, Galbraith Branley, said they planned to seek leave to appeal against her convictions." More (Guardian Unlimited 10.21.2006). Further reading. Annals of judicial internet dating (which includes links to earlier postings about the scandal as well as to other postings on judicial romance, judicial dating, and judicial cyber-dating).
Annals of literalistic judicial textualism. "A Riverside County judge dismissed an indecent exposure charge against a woman who allegedly disrobed in front of a 14-year-old boy, saying the law applies only to men. Superior Court Judge Robert W. Armstrong said this week that the law mentions a person who 'exposes his person'...." More (L.A. Times 10.21.2006). Comment. For some of our views on indecent exposure laws, see, our posting titled Judge dismisses indecency charge against nude protester, with extensive comments.
Romney offers different views on judges to different crowds. "Anyone who has listened closely to Gov. Mitt Romney in recent years has heard him rail against the Supreme Judicial Court and the 'activist judges' who ruled in 2003 that gay marriage was legal under the Massachusetts constitution. Romney did so as recently as last weekend, when the potential 2008 presidential candidate interrupted his national travels to return to Boston for a televised religious gathering that condemned the concept of gay marriage...Yet two days later, during the swearing-in ceremony for the highest judicial appointment he has made, Romney was far more charitable to judges and what drives their decisions...." More (Boston Globe 10.20.2006).
Judicial pro bono: free wedding services for vets. "[M]ore than 150 justices of the peace...have signed up for the Massachusetts Justices of the Peace Association pro bono military wedding program. 'The justices will conduct a marriage ceremony at no charge to any military person who has served, is serving or being deployed to Iraq or Afghanistan,' said Michael Backer, secretary of the Massachusetts Justices of the Peace Association Inc., who sent a mass e-mail to ask if any of its 500 members were interested in the program...." More (Milford Daily News 10.21.2006). Comment. Ought justices of the peace be allowed to charge anyone for performing a brief wedding ceremony on public property during normal work hours? Isn't marrying people a duty of office?
Ex-judge is fined for invading privacy of ex-boyfriend. "The Tel Aviv District Court on Thursday sentenced former judge Osnat Alon-Laufer to six months suspended sentence and fined her NIS 10,000 after convicting her of penetrating computer material and invading the privacy of her former boyfriend, whom she suspected of betraying her...." More (Jerusalem Post 10.20.2006). Comment. In pleading guilty, the ex-judge admitted hiring a private eye who had appeared before her in court to surreptitiously obtain printouts of the boyfriend's cellphone calls. Is a judge's doing this worse than or not as bad a corporate type's hiring a p.i. to get the phone call record of a corporate director suspected of leaking?
Police say motorist who struck officer is federal judge, 41's cousin. "A popular city police officer was fighting for his life Thursday after being hit by a sport utility vehicle driven by a federal judge who is a cousin of former President Bush, New Haven police said. Officer Dan Picagli, a 17-year veteran of the force, was hit while working an extra-duty job directing traffic in the rain Tuesday night in a dimly lit section of Chapel Street...City officials identified the driver of the SUV that hit Picagli as John M. Walker Jr., a senior judge on the 2nd U.S. Circuit Court of Appeals in New York, who lives in Connecticut and maintains court chambers in New Haven. They said he was leaving work when the accident happened...." More (Boston Globe 10.19.2006). Comment. President Reagan appointed Walker to the federal district court in 1985, and Walker's cousin, President George Herbert Walker Bush, appointed him to the circuit bench in 1989. Both appointments, presumably were based on merit, as of course are all judicial appointments, whether by a president or by a governor or by a "nonpartisan" board or commission. Update. Officer struck by Judge Walker dies (Houston Chronicle 10.21.2006).
Keep courts open 24/7/365? "Busy magistrates courts should open round-the-clock to end an epidemic of trials cancelled at the last minute, MPs will demand today. Figures show 14 per cent of court hearings are scrapped, to the fury of victims and witnesses who see justice delayed...The...delays nationwide cost the taxpayer £173m every year...." More (News and Star - UK 10.19.2006).
Judge is doing time on the island. "Autumn is the time of year when most people head to Vermont or other points north to leaf-peep and enjoy a cup of fresh hot cider. Judge Judith Fabricant headed south from her Brookline home and took a ferry out to a blustery island for the month of October. Although Martha's Vineyard is mostly devoid of apple trees, the fall Superior Court session is ripe with trials and hearings for the picking...For her five-week stay on the Island, Judge Fabricant rented a home one mile from the courthouse, and has adopted walking or biking as her mode of transportation -- a stark contrast from her normal commute by car...." More (Martha's Vineyard Times 10.19.2006). Comment. Tough assignment, but somebody's gotta do it.
When judges need editors. "James Taranto of OpinionJournal...comments on an amusing article that appeared in Legal Times regarding the silent feud that rages beneath the placid surface of the Supreme Court about when to add an 's' after the apostrophe when forming a possessive of a noun that ends in 's.' Iím with the author, attorney Jonathan Starble: count me in the camp of Justice Souter on this one, not Justice Thomas...As Starble's article makes clear, the trouble on the Supreme Court is that every justice runs a self-governing editor's shop, the result being nonstandardization. No one is willing to tell any of the justices that they commit solecisms. Now there's a real job for the new chief justice!" More (Bench Memos at National Review 10.19.2006).
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Slate's list of Judge Roberts resources. Slate has created a John Roberts Roundup, a regularly-updated page of links to some of the better web postings relating to Judge Roberts. Click here.