BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great legal importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."
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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 (archived here), contained a personal campaign weblog, possibly the first campaign 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.
The campaign to deprive MN voters of a role in judicial selection. I've posted a detailed critical essay on this topic, and I link to it here for the convenience of not only Minnesota readers but also of voters in other states who are being "courted" in similar ways by the judicial establishment in well-financed campaigns to give up their historic role in judicial selection: Strib. urges longer terms for judges, no role for voters in their selection. Following my essay you will find updated links to many of my earlier as well as later postings relevant to this important public policy question.
Sinclair Lewis on Campaign 2008 and other matters. No 20th Century American writer of note merits re-reading more these days than Minnesota's own Sinclair Lewis. I've re-read several of his books in recent years and benefited from each of them. One of them is his 1947 novel of northern racism, Kingsblood Royal, set in a barely fictionalized Duluth. Want greater insight into the so-called "religious" right? Read his Elmer Gantry (1927). Want to better understand how politicians use the flag and fake patriotism to justify all manner of Governmental immorality? Read It Can't Happen Here (1935). Want to understand the small town of your youth? Read Main Street (1920). Want to understand the Babbits who still run this country? Read Babbit (1922). Medical research? Arrowsmith (1925). The romantic woes of a Minnesota trial judge? Cass Timberlane (1945).
Did Judge Abdul pre-judge? "Jason, the first song I loved hearing your lower register, which we never really hear. The second song, I felt like your usual charm wasn't...it was missing for me, it kind of left me a little empty. And the two songs made me feel like you're not fighting hard enough to get into the top four.'' -- Paula Abdul, reading from notes. More (EW.Com 04.30.2008). Comment. Trouble is, Jason had sung only his first song. What's her explanation?
Souter speaks quietly at judicial conference. "Remarking on a portrait on display at the Supreme Court of an unnaturally svelte William Howard Taft, the rotund former president and chief justice, Souter called it 'the greatest example of aesthetic weight loss in the history of American portraiture.' Souter also told the story of Judge Learned Hand, who once hurled a paperweight in anger at his law clerk Gerald Gunther. 'Fortunately, he was a poor pitcher,' Souter said, adding that the object missed its target...." More (AP.Google 04.30.2008). Comment. When Souter was nominated, I got a call from the ABA "investigators" who were going to rate his qualifications. Souter is a friend of John S. Kitchen, my now-former brother-in-law, an attorney in New Hampshire. I was glad to pass along to the ABA the hearsay about how highly Johnny thinks of him.
Judge who's under fire runs unopposed, supports opponent of colleague. "If Rockford District Judge Steven Servaas leaves office, it will not be because voters have decided it's time for him to depart. Servaas, under fire from the state Judicial Tenure Commission, faces no opposition in this year's election. But fallout from that controversy is being felt by the other judge in the 63rd District. Assistant Kent County Prosecutor Gregory T. Boer is running against Judge Sara Smolenski...Servaas says he supports Boer over his fellow district judge. 'I thought Sara and I were friends,' Servaas said. 'She basically stabbed me in the back.'" More (Grand Rapids Press 04.30.2008). Earlier. See, Threatening tactics by state judicial tenure chief in MI; Embattled judge mounts a defense.
Judge holds press conference to protest proposed waste project. "Felipe Reyna, one of a three-member panel of state judges on the Waco-based 10th Court of Appeals, held a news conference on his 25-acre spread to rail against the proposed [wastewater treatment] plant. He was joined by about 130 [other] residents who live along Bull Hide Creek 2 1/2 miles northeast of Lorena. They have denounced the plant, which they believe will mar their tranquil country lifestyle. 'I'm here to tell you that our enemy are a bunch of lying, deceitful and hypocritical scoundrels,' Reyna said...." More (Waco Tribune 04.29.2008).
Top judge is pepper-sprayed while being arrested for DWI. "Lake County's top judge faced a dousing of pepper spray and a drunken-driving charge after a weekend traffic stop by Vernon Hills police. David M. Hall, a Lake County judge since 1989 and chief judge since December 2007, was admitted to Condell Medical Center in Libertyville for a 'heart-related event' after his arrest, his attorney Mark Belokon said. Hall, 55, of Waukegan, also faces charges of resisting a peace officer...." More (Chicago Sun-Times 04.29.2008). Comments. a) As always, we caution that allegations are just that. Everyone -- yes, even a judge -- is presumed innocent until proven otherwise beyond a reasonable doubt. b) BurtLaw Judicial Rule-of-Thumb #57: A judge (or anyone else) wanting to avoid the embarrasment of a DWI record ought never drive after drinking even the proverbial "one beer."
Are judges afraid of looking the defendant in her eyes at sentencing? "[Some j]udges [in Brooklyn federal court] are now handling guilty pleas and sentencings with the defendants seated 25 feet away at the counsel table, instead of standing in front of the bench...The setup is common in state Supreme Court, but is a new phenomenon in federal court, where it has not been well-received by some judges and defense lawyers...Two weeks ago, Judge David Trager overruled the marshals' recommendation that two violent drug dealers remain at the counsel table when they pleaded guilty. 'This is important and I want them up here,' Trager ordered a marshal. 'You're trying to communicate a message to that person and the [farther] away they are, it becomes more of an institutional proceeding rather than on a man-to-man level,' [Chief Judge Raymond] Dearie said." More (N.Y. Daily News 04.29.2008).
Should a judge wear a flag pin? From last fall: "Senator Barack Obama's comments about the absence of an American flag pin on his lapel created dustup on the campaign trail yesterday. When asked why he wasn't wearing a flag pin in a television interview on Wednesday he said he had stopped wearing one because he felt that the pin 'had become a substitute for...true patriotism.' So what are the other candidates wearing on their lapels these days? Lets take a look at a few photos from the most recent debates...." Farhana Hossain, writing on 10.05.2007 for The Caucus, a political blog site maintained by the NYT, showed that not very many of the candidates were wearing the old pin. Comment. We expressed our views on such matters awhile ago in a mini-essay titled Isaac Bashevis Singer's dad's view of pledges, which we reproduce here:
Isaac Bashevis Singer's dad's view of pledges. The late and prolific Yiddish writer, Isaac Bashevis Singer, who won a Nobel Prize for Literature, wrote a book I like about his father, a Rabbi, titled In My Father's Court - A Memoir 60 (1966). In a chapter titled "The Oath," he wrote:
Whenever he conducted a Din Torah [rabbinical arbitration], Father repeated the same speech: that he was opposed to the taking of oaths. Not only did he object to oaths, he objected even to pledges, words of honor, or handshaking guarantees for the fulfillment of a promise. One can never fully trust one's own memory, Father argued; therefore, one must not swear even to what one believes to be the truth. It is written that when God proclaimed, 'Thou shalt not take the name of the Lord...,' heaven and earth trembled.
As I have said before, I'm like Singer's dad in my general personal objection to pledges, oaths, petitions, promises, loaded questionnaires, etc. I don't let people or groups put words in my mouth. It comes from my parents. Two Mom-isms from my youth: "Dare to be different" and "Don't be afraid to say no." I'm also with Cosmo Kramer, who, in the episode titled "The Sponge" (Season 7 of Seinfeld), is "against" AIDS but unwilling to wear "the ribbon" that everyone insists he wear. "You know what?" -- he says to one of them -- "You're a ribbon bully." Groups are free to submit questionnaires to and otherwise try to pressure candidates for public office, including judicial office, to "wear their ribbons," the ribbons everybody is wearing; but candidates who allow themselves to be bullied or who try curry favor with this or that group signify to me that by doing so they are not the kinds of candidates I think worthy to represent me. Thomas Jefferson said it all better than I can:
I never submitted the whole system of my opinions to the creed of any party of men whatever, in religion, in philosophy, in politics or in anything else, where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to Heaven but with a party, I would not go there at all.
If I couldn't get elected except by submitting "the whole system of my opinions" to the creed of this or that group or this or that newspaper, I'd rather lose -- which of course is what I do. But what do you win when you win by selling your soul?
The great William James on the theme of civic courage:
That lonely kind of courage (civic courage as we call it in times of peace) is the kind of valor to which the monuments of nations should most of all be reared, for the survival of the fittest has not bred it into the bone of human beings as it has bred military valor; and of five hundred of us who could storm a battery side by side with others, perhaps not one would be found ready to risk his wordly fortunes all alone in resisting an enthroned abuse. The deadliest enemies of nations are not their foreign foes; they always dwell within their borders. And from these internal enemies civilization is always in need of being saved. The nation blest above all nations is she in whom the civic genius of the people does the saving day by day, by acts without external picturesqueness; by speaking, writing, voting reasonably; by smiting corruption swiftly; by good temper between parties; by the people knowing true men when they see them, and preferring them as leaders to rabid partisans or empty quacks. Such nations have no need of wars to save them. Their accounts with righteousness are always even; and God's judgments do not have to overtake them fitfully in bloody spasms and convulsions of the race.
Governor cautions judges against work slowdown to protest low pay. "State officials -- all the way up to Gov. Paterson himself -- warned New York jurists angry over their lack of a pay raise that protest efforts to blackball legislators' law firms could backfire. 'I would be a little careful if I were them about slowing down any process,' Paterson said...." More (N.Y. Daily News 04.28.2008). Comment. But, guv, nobody knows the trouble those poor judges have seen.
Don't criticize courts? "Lawyers who are in the habit of addressing press conference either in wigs and gowns or engage in public analysis and criticism of courts' pronouncements and decisions have been warned to stop such actions with immediate effect. The Nigerian Bar Association (NBA) at the weekend came out strongly against the practice, as it also warned non-lawyers who hide under the pretext of political analysis to comment on court proceedings and criticism of court judgment to desist from such act...." More (This Day Online 04.28.2008). Comment. Here's an entry titled "When judges misuse doctrine to deflect criticism" dated 08.16.2001 from BurtLaw's Law and Everything Else - Court Gazing II:
Once upon a time in a small town in the Midwest a man, with much fanfare, took charge of a community celebration that theretofore had been organized each year by some women. The good citizens were not impressed with the changes the man made to the celebration in an attempt to put his mark -- his dog markings, as it were -- upon it. Aware of the criticism of his efforts, the man started a speech by quoting Dale Carnegie, the author of the only book the man had ever read, How to Win Friends and Influence People. The quote was, "As that great philosopher, Dale Carnegie said, there are three 'C's' to getting along with people: 'Don't criticize, don't condemn, don't complain.'" Throughout my life I have observed people use similar arguments to try deflect criticism or set themselves above it. President Johnson, as many Presidents before him had done in similar circumstances, used the argument to try prevent criticism of his decisions regarding our participation in the Vietnamese civil war. Today judges regularly wave the flag of "judicial independence." It is a flag they believe should protect them the way the Red Cross flag protects relief workers in war zones. These politicians -- judicial politicians but nonetheless politicians -- want us to believe they are "the good guys" and we should just leave them alone to do their business. Not a bad approach if they can pull it off. On Tuesday of this week Madame Justice Claire L'Heureux-Dubé, of the Supreme Court of Canada, tried to pull it off. She said, to a gathering of lawyers, "I would ask the people in the media to [tell] me what is productive in personal attacks against judges, and the pressure that it puts on the judiciary? It is so unproductive that to me, it is a sliding slope, an attack really, to independence of the judiciary." As The National Post reports today [link expired], "Judge L'Heureux-Dubé was at the heart of a very public brouhaha in 1999 after [she herself] publicly criticiz[ed] a[ female] Alberta judge who had questioned the morals of the victim in a sexual assault case." That judge responded by denouncing Judge L'Heureux-Dubé "for being anti-male and said her attitude could provide 'a plausible explanation' for the increasing rate of male suicides in Quebec." I guess the truth is that Judge L'Heureux-Dubé believes public criticism of judges is o.k. if she is the one doing the criticizing. (08.16.2001).
For a 2000 essay expressing some of my views on the subject of judicial independence, click here.
Old Bailey. "The Proceedings of the Old Bailey, 1674-1913. A fully searchable edition of the largest body of texts detailing the lives of non-elite people ever published, containing 197,745 criminal trials held at London's central criminal court." OldBaileyOnline. And see, Tim Hitchcock & Robert Shoemaker, Tales from the Hanging Court (2007) ("Tales from the Hanging Court draws on published accounts of Old Bailey trials from 1674-1834, a rich seam of social, political and legal history. Through these compelling true stories of theft, murder, rape and blackmail, Hitchcock and Shoemaker capture the early history of the judicial system and the colourful, vibrant and sometimes scandalous world of pre-industrial London.").
Judges trade bitter remarks. "Some of South Africa's top judges are embroiled in a bitter fight over alleged racism, nepotism and discrimination. Northern Cape Judge President Frans Diale Kgomo sparked the controversy when he lodged a complaint with the Judicial Service Commission in 2006, demanding that judges Steven Majiedt and Hennie Lacock be axed for misconduct after they allegedly insulted him. Another Northern Cape judge, Lazarus Pule Tlaletsi, also lodged a complaint against Judge Majiedt and Judge Lacock, accusing them of misconduct. In return, Judge Majiedt filed a complaint of discrimination, racism and nepotism against Judge Kgomo...." More (Sunday Times - South Africa 04.27.2008). Comment. Worth reading.
Wee ones to judge, sentence peers. "Schoolchildren who commit minor crimes such as vandalism will be sentenced by fellow youngsters under a controversial plan to set up Scotland's first 'kiddy court.' Children as young as 11 will form a jury, listen to the facts of the case, and hand down a sentence, which could include making good criminal damage. The scheme -- which has been branded 'crackpot' by a former High Court judge -- is close to being approved by officials at Scottish Borders Council...." More (Scotland on Sunday 04.27.2008).
Judicial woes nothing new at this supreme court. "Three of the five state Supreme Court justices -- including two who ruled on Patricia Coffey's fate -- have weathered their own brushes with the Judicial Conduct Committee. Of the three, Justices Linda Dalianis and James Duggan ruled on Coffey's three-year suspension without pay before Coffey resigned last week. Chief Justice John Broderick recused himself. In 2000, Dalianis was reprimanded for using official Superior Court stationery in a personal property dispute four months before she was sworn in as the first woman to serve on the state's Supreme Court...In January 2002, Broderick and Duggan were [criticized but] cleared of any misconduct after they helped broker a settlement to retired Chief Justice David Brock's misconduct investigation...." More (Union-Leader - N.H. 04.27.2008).
Judge's house under guard after acquittal of cops who killed unarmed man. "Plainclothes and state court officers guarded the home of Supreme Court Justice Arthur Cooperman Saturday, the day after he cleared the three cops who killed Sean Bell in a 50-bullet barrage. Two unmarked police cars with tinted windows were stationed outside the brick home in Queens. Plainclothes officers also kept watch from a vehicle parked in a neighbor's driveway, and a state court officer's car circled the block every few minutes. Cooperman has become a focal point for Bell's supporters who disagree with his verdict...." More (N.Y. Daily News 04.27.2008).
Assembling by experience. "Erdrich understands the potency of stories. Mooshum tells of a time when a story about hunger escaped from the teller and terrorized the countryside. After her first kiss, Evelina sadly thinks, 'I had expected to feel joy but instead felt a confusion of sorrow, or maybe fear, for it seemed that my life was a hungry story and I its source...I had now begun to deliver myself into the words.' Later in life, at Judge Antone's wedding, she realizes, '[w]hen we are young, the words are scattered all around us. As they are assembled by experience, so also are we, sentence by sentence....'" -- From a review by Brigitte Frase of Minnesota novelist Louise Erdrich's The Plague of Doves (L.A. Times 04.27.2008). Comment. The common law, like the life of each of us, is "assembled by experience...sentence by sentence," case by case.
Free speech at Columbia, 40 years later. Forty years ago Gus Reichbach, a Columbia U. law student, was disciplined for his role in the student protests. Law profs later tried to block his admission to the bar. Eventually he became a judge. The other day he was back at Columbia Law to speak at a 40th anniversary event. An NYT reporter was interviewing him when a campus cop came up and shut down the interview because the reporter hadn't gotten advance permission. "I guess things haven't changed that much," the reporter quotes the judge as saying. Corey Kilgannon, Columbia Protester, Now a Judge, Returns to Campus (NYT 04.26.2008). Comment. So much for free speech and freedom of the press at Columbia. Lee Bollinger, its president, is often described in the press as "a First Amendment scholar." Based on this and other things I've read about him, including in a recent piece by Jane Kramer in the New Yorker, I'm glad Harvard passed over him when he was a finalist for its presidency. Compare and contrast. Compare and contrast with a) Barry Bearak, In Zimbabwe Jail: A Reporter's Ordeal (NYT 04.27.2008) ("Not accredited in Zimbabwe," Bearak was "charged with the crime of 'committing journalism'"; the detective inspector "described the offense to [him] as something despicable, almost hissing the words: 'You've been gathering, processing and disseminating the news.'"), and b) Free speech flip-flop (SW Journal 06.30.2005) ("After taking a public relations beating and reviewing First Amendment case law, the Minneapolis Park and Recreation Board administration has reversed itself and will no longer require political candidates [or advocacy groups] to get a permit to hand out literature in the parks.").
Chief retires and gets soft landing on featherbed known as 'senior status.' "Joseph E. Lambert is leaving his chief justice's seat for the featherbed that is the 'senior status judge' system, thus assuring himself about $40,000 more a year in retirement pay for the rest of his life...." More (Louisville Courier-Journal 04.26.2008).
The judge had her arrested; now she's written a book. Last summer FLA Circuit Judge Richard Wennet took offense when a woman he'd dated, Julie Ann Domotor, secretly recorded his comments on a public beach about a topless sunbather, then posted the recording on YouTube. On his complaint, she was arrested and charged with violating FLA's unusually-broad statute governing taping of conversations and was subsequently was convicted and spent some time in jail. See, Ex-girlfriend of judge is charged over taping of judge at public beach (with updates). Now she's published a book about the incident, titled Power and Corruption in Palm Beach County.
Cosby and judge team up to say they're sick and tired of... "When Fulton Superior Court Judge Marvin Arrington got mad, an icon listened. On Thursday, Bill Cosby headlined a 'fireside chat' with Arrington and Atlanta-born comic Chris Tucker at Benjamin E. Mays High School. The packed auditorium held mostly at-risk high school students and their parents -- the people Cosby is trying to reach with his message of tough love for the African-American community...." More (Atlanta Journal-Constitution 04.25.2008). Earlier. Black judge apologizes for kicking white lawyers out, but he had a reason; Judge denies threatening defendant with baseball bat.
Chinese Commie calls for greater 'judicial cooperation' with Egypt. "A senior leader of the Communist Party of China (CPC) on Friday called for greater judicial cooperation between China and Egypt. Zhou Yongkang, a member of the Standing Committee of the Political Bureau of the CPC Central Committee, made the remark while meeting with Mokbel Shaker, chairman of the Supreme Judicial Council of Egypt...." More (China View 04.25.2008). Comment. I read stories like this every now and then about some Chinese Commie politician calling for greater judicial cooperation between China and (fill in the name of country). Boy, in the case of China and Egypt, who's going to learn from whom on judicial matters? It's a puzzlement. But, then, as I say that, I hear an inner voice saying, "Don't cast stones across the Pacific -- you'll get a sore arm."
Chief says judges open to greater openness, BUT... "When transparency is becoming the buzzword in the corridors of bureaucracy, the higher judiciary is all set to follow suit as well. Taking a U-turn from his earlier view that judges ought not to declare their assets, Chief Justice of India, Mr K G Balakrishnan, said the higher judiciary was open to the idea...." More (The Statesman - India 04.24.2008). "However, after the function, when [a reporter] asked him if he was ready to make public the declaration of assets made by judges to him, the CJI replied in the negative. 'No...no...no,' he said." More (MSN News - India 04.24.2008). Comment. The chief's little word dance reminds me of an answer I heard to a reporter's question about government appropriations propounded to the late Minnesota Congressman John Zwach. Zwach (rhymes with "clock") is the guy Nelson Rockefeller, campaigning for him, referred to as "my good friend, Congressman John Zwich." Anyhow, Zwach's answer to the reporter was that he favored an appropriation that was "not too large but, on the other hand, not too small -- a normal appropriation." How much is too much "judicial transparency"? Read on...
More charges of excessive judicial 'transparency' in OK. Earlier this week we read the following good news in the Tulsa World: "Donald Thompson, a longtime Creek County judge convicted of indecent exposure for masturbating during trials, is within days of his release from prison." More (Tulsa World 04.20.2008). For detailed background see, Annals of MWP: Masturbating While Presiding (and multiple links). Now comes this: "Two felony counts of indecent exposure were filed Thursday against Tulsa County District Judge Jesse Harris...Harris is charged with exposing himself to an ex-girlfriend and her friend in the parking lot of an east Tulsa hotel between 11:30 a.m. and 12:30 p.m. on March 9, according to police reports and Harris' attorneys. Harris denies the allegation, saying he spoke to his former girlfriend from his car for about five to eight minutes and then left, his attorneys said...." More (Tulsa World 04.25.2008). Comment. We presume Judge Harris is innocent (hey, pal, it's called the "presumption of innocence"). But if he's found guilty, we hope the OK folks deal with the matter a little more sensibly than they did in the case of Judge Thompson, the MWP judge, whose harsh sentence to prison was, in our opinion, absurd. As I said at the time, OK made way too big a deal out of that matter and embarrassed itself in the eyes of the world. But, given the public temper in OK, I offer the following BurtLaw Judicial Rule of Thumb #103: Always keep your hands above the waist in public places.
'Merit' selection -- why stop at judges when silencing the people? Gerald K. McOscar, a Pennsylvania lawyer, has a wise op/ed piece in the Philadelphia Daily News titled "Why Stop at Judges?" in which he effectively skewers the arguments of those who, under the cover of the so-called "merit" plan of judicial selection, seek to deprive voters of a role in judicial selection. He rhetorically asks, in relevant part:
[W]hy stop with judges? As long as we're talking reform, let's take it to the next level. Why not merit selection for all statewide elective offices?...As long as we're silencing people, let's silence them across the board...." With respect to the composition of the proposed "merit" system panel for selecting judges, he says, "[I]t's not clear how a 14-member judicial commission, the majority of whom are political appointees and union representatives, would entirely solve the problem. Doesn't each commission member represent a special interest? That may be fine for select business, union and civic groups (by the way, who will be the selectors?), but who will speak for the silent majority who aren't politically connected or who prefer that their votes do the talking? How will their voices be heard? Perhaps someone will explain....
More (Philadelphia Daily News 04.25.2008).
Annals of religiously-independent religious judges. Jill Lepore, a "critic at large" for The New Yorker, has an interesting review of some recent books on religious liberty and the founding of America. It's titled Prior Convictions - Did the Founders want us to be faithful to their faith? (New Yorker 04.14.2008). Lepore structures her review around the life and thoughts and deeds of an interesting fellow named Royall Tyler (1757-1826). Here's a relevant snippet:
Royall Tyler was not a Founding Father. He was a prodigal son. But he spoke and wrote about religious liberty all his life -- from the pulpit, from the bench, and from his desk....In 1801, Tyler was elected to Vermont's supreme court. (He subsequently served as chief justice.) In a case brought before his bench the following year, he rejected as legally invalid an out-of-state bill of sale for a slave. (In 1791, Vermont had been the first state to adopt a constitution prohibiting slavery.) "Would your honor be pleased to tell us what would be sufficient evidence of my client's ownership of this man?" the lawyer asked the judge. "Oh certainly," Tyler answered wryly. A bill of sale "from the Almighty."
There's lots more about him in a fascinating piece. Want more fascinating pices? Subscribe to The New Yorker. I've been reading it regularly since my law school days in the early 1960's. It's had its ups and downs. Under the current editor, it's better than ever.
Are elected judges superior to appointed judges? "We began this project with the assumption that the data would demonstrate that appointed judges are better than elected judges. Our results persuade us that the story is more complicated. It may be that elected judges are, indeed, superior to appointed judges...." Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary (Olin L. & Ec. Working Paper No. 357 2d Series, U. Chi. L. S. 2007).
Chaos in the courtroom. "A court hearing to decide the fate of the 416 children swept up in a raid on a West Texas polygamist sect descended into chaos Thursday as hundreds of lawyers in two packed buildings shouted objections and the judge struggled to maintain order...." More (USA Today 04.24.2008). Comment. My third year at HLS I took family law from Frank E. A. Sander, one of the co-authors of what was then considered a "new wave" family law casebook: Foote, Levy, Sander, Cases and Materials on Family Law (1966), reviewed Drinan, Book Review, 79 Harv. L. Rev. 1727 (1966). The course was interesting, Professor Sander (profiled and pictured here) was excellent, and I still have the casebook, which is filled with good stuff, including this humorous tidbit in a section on what ought to be the legal prerequisites to the issuance of a marriage license:
(i)No marriage [is] to take place without a special license unless there [is] evidence that there ha[s] been a formal engagement registered at least three months beforehand. (ii) The engagement would be registered with the minister...He would have an interview with both applicants and satisfy himself that the parties had gone into the matter thoroughly...[A] questionnaire would be filled in by both parties...[It] would disclose whether they have been introduced to each other's family; the amount of their respective incomes; where they are going to live; and whether they can buy furniture....
Statute proposed by solicitor testifying before U.K. Royal Commission on Marriage and Divorce, Report 1951-1955, Cmd. No. 9678 (1956), quoted in Foote, Levy, Sander, Cases and Materials on Family Law 236-7 (1966). Undoubtedly, there are a number of issues in the Texas polygamist sect case referred to above that will qualify the resulting caselaw for inclusion in whatever family law casebook is Little & Brown's successor to Foote, Levy, and Sander.
More on Frank E. A. Sander. "As the Supreme Court was considering Brown v. Board of Education and its companion cases, the Justices agreed not to discuss them with others -- not even their own law clerks. As a result, many of the thirty-six young men who worked as clerks during the Court's October Terms 1952 and 1953 were not privy to very much, in the segregation cases, of the Justices' thinking, work, discussions, votes and draft opinions. This secrecy system did, however, have exceptions. Some of the Justices, including Chief Justice Warren and Associate Justices Stanley F. Reed, Robert H. Jackson and Felix Frankfurter, gave assignments to and in varying ways confided in their respective law clerks as the Court wrestled with and ultimately decided the unconstitutionality of school segregation. In late April 2004, a few weeks prior to Brown's 50th anniversary, the Robert H. Jackson Center in Jamestown, New York, assembled four attorneys, former law clerks to the Justices named above, for a group discussion of Brown. This was the first occasion on which these former clerks had, together, assembled and compared their recollections of the Brown decision-making process inside the Supreme Court...." Abstract (SSRN). Their discussion was then edited and published; see, "Supreme Court Law Clerks' Recollections of Brown v. Board of Education," 78 St. John's Law Review 515-567 (2004).
Judge picked by guv to be 'personal counsel' decides he'd rather be judge. "The State Supreme Court justice chosen last month by Gov. David A. Paterson to be his counsel has decided to remain on the bench. The justice, James A. Yates of Manhattan, said in a statement on Wednesday that he had decided to decline the position in Mr. Paterson's administration after realizing that his 'true calling' was to serve as a judge. 'I very much would have enjoyed the opportunity to serve the governor and his administration, but serving as a judge is a position that I love, and that I find too hard to leave,' Mr. Yates said...." More (NYT 04.24.2008). Comment. I always felt one of the biggest mistakes in SCOTUS history was the decision of Justice Arthur Goldberg, whose son was an HLS classmate of mine at the time, to resign in order to serve as LBJ's U.N. Ambassador.
When Algonquin J. Calhoun discharged a gun in the courtroom. "For the first time in its history, a weapon was fired inside a courtroom at the Gatineau courthouse yesterday. But the man who inadvertently pulled the trigger was the Quebec court judge presiding over the case. Judge Real Lapointe was hearing evidence in a home invasion trial yesterday morning when he asked to see the weapon -- an air pistol -- to see if the grip was still intact or had been damaged when the victim was allegedly pistol whipped. The judge later told a reporter that while handling the weapon, the pistol appeared to become 'unjammed.'" More (Edmonton Sun 04.24.2008). Comment. This reminds me of a hilarious episode of the TV version of Amos 'n' Andy in which George "Kingfish" Stevens gets into trouble when he tries to pawn a gun that he finds in a purse he bought as an anniversary present for Sapphire, his domineering wife. The clerk thinks he's trying to rob her when he displays the gun and calls the cops, causing Kingfish to flee. Sapphire, on finding the gun, assumes he's guilty and turns him in. His attorney, the hilarious Algonquin J. Calhoun, winds up defending him in court. As he's waving the gun around in his over-the-top defense, he accidentally discharges it. I watched the episode on reruns a number of times as a kid. If I'm right, it's the episode known as 'The Gun,' that played originally on August 23, 1951 (Season 2, Episode 16).
Annals of judicial qualifications: Supreme Court of Pies. Asked about his qualifications to be a Pie Judge at the National Pie Championship in Kissimmee, FLA, Dr. Stephen Blessing, a psychologist at the University of Tampa who is "known for his impressive research on memory and super bowl commercials," responded: "My qualifications? I'm originally from the Midwest (Illinois), and come from a long line of pie bakers and eaters. I usually ask for a birthday pie, not a birthday cake." More (University of Tampa Minaret - Interview 04.25.2008).
A word or two about 'The Law' from Holmes's buddy, William James. I find it amazing that two of my heroes, Justice Oliver Wendell Holmes, Jr., and William James, were the best of friends during their late adolescent years and early adulthood. Here's some "Holmsean" talk about "Law" from James in Lecture VII of his series of lectures published in 1907 under the title Pragmatism:
Common-law judges sometimes talk about the law, and school-masters talk about the latin tongue, in a way to make their hearers think they mean entities pre-existent to the decisions or to the words and syntax, determining them unequivocally and requiring them to obey. But the slightest exercise of reflexion makes us see that, instead of being principles of this kind, both law and latin are results. Distinctions between the lawful and the unlawful in conduct, or between the correct and incorrect in speech, have grown up incidentally among the interactions of men's experiences in detail; and in no other way do distinctions between the true and the false in belief ever grow up. Truth grafts itself on previous truth, modifying it in the process, just as idiom grafts itself on previous idiom, and law on previous law. Given previous law and a novel case, and the judge will twist them into fresh law. Previous idiom; new slang or metaphor or oddity that hits the public taste:--and presto, a new idiom is made. Previous truth; fresh facts:--and our mind finds a new truth.
All the while, however, we pretend that the eternal is unrolling, that the one previous justice, grammar or truth is simply fulgurating, and not being made. But imagine a youth in the courtroom trying cases with his abstract notion of 'the' law, or a censor of speech let loose among the theatres with his idea of 'the' mother-tongue, or a professor setting up to lecture on the actual universe with his rationalistic notion of 'the Truth' with a big T, and what progress do they make? Truth, law, and language fairly boil away from them at the least touch of novel fact. These things MAKE THEMSELVES as we go. Our rights, wrongs, prohibitions, penalties, words, forms, idioms, beliefs, are so many new creations that add themselves as fast as history proceeds. Far from being antecedent principles that animate the process, law, language, truth are but abstract names for its results.
Secretaries Day. "The confusion over who qualifies as a secretary creates social anxiety about either over-celebrating the holiday or under-celebrating it. One Secretaries Day, a former advertising-sales assistant and co-worker of mine got lovely plants from colleagues who rushed to point out that they'd gotten her a gift even though she wasn't really a secretary. She got the impression they thought she might be offended by being lumped in with the admin staff. The holiday forces workers, like it or not, to evaluate how they stack up. Mail-room guy, copy clerk, typist, receptionist, administrative secretary, executive assistant -- are you low enough on the totem pole to merit a gift? Or are you too low?" -- From Melonyce McAfee, Keep Your Roses - I Hate Secrearies Day. (Slate 04.23.2008). Comment. Heard the one about the judge who a) took his secretary to lunch during secretaries week at a restaurant that gave flowers to each honored secretary and b) after lunch asked her if she'd mind if he took the flowers home to his wife? Further reading. Previous BurtLaw postings on secretaries.
Ought we be ashamed? "The United States has less than 5 percent of the world's population. But it has almost a quarter of the world's prisoners. Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes -- from writing bad checks to using drugs -- that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations...." More (NYT 04.23.2008). Comment. The article quotes Marc Mauer of the Sentencing Project as saying that "Minnesota [which imprisons 300 people per 100,000 population] looks more like Sweden [80 per 100,000] than like Texas [1,000 per 100,000]." Still, I stick to what I said in the conclusion to my 2004 Campaign Position Paper on Crime and Punishment: "Perhaps some day at least we in Minnesota will see the foolishness and, indeed, basic immorality of our harsh approach and the wisdom and practicality of the Scandinavian approach."
Worker dies from fall while changing courthouse light bulb. "A city employee died of injuries suffered in a fall while working in the attic of a courthouse in Queens on Tuesday, city officials said...The accident occurred when Henry Chang, a stationary engineer for the Department of Citywide Administrative Services, was changing a light bulb about 11:20 a.m. in a maintenance room at the State Supreme Court building in Long Island City, the police said. Mr. Chang, 58, of New Hyde Park in Nassau County, fell 15 to 20 feet and struck his head on a metal electrical box, causing severe injuries, the authorities said...." More (NYT 04.23.2008).
Ex-judge pleads guilty to looting aunt's estate. "[F]ormer Brooklyn Supreme Court Justice Michael J. Garson [has] agreed to a plea deal in which he admits to the misdemeanor crime of Criminal Possession of a Forged Instrument in the Second Degree, pays his aunt's estate back in full the $163,000 he allegedly bilked from her when she was alive, plus interest, and waives his right to any inheritance from the estate. Garson must also resign from the New York State Bar." According to the story, Garson was charged with felonies but was given the plea deal because of his cooperation with the Brooklyn D.A. in a confidential investigation, which led to the conviction of his cousin, former Brooklyn Supreme Court Justice Gerald P. Garson, of accepting bribes. More (Brooklyn Daily Eagle 04.23.2008).
Do our 'likes' taint our judgment more than our 'dislikes'? "Our research indicates that decision-makers...need to be highly sensitive to the danger of over-projecting their own likes, more so than their own dislikes." Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, "What's Not to Like" Preference Asymmetry in the False Consensus Effect." Journal of Consumer Research: June 2008. Summary (Science Daily 04.23.2008).
Late judge left 40% of estate to charities. "The late Nick Schaefer, a longtime Outagamie County circuit judge, left a significant part of his estate to local animal welfare organizations and nonprofit organizations, according to probate records. Schaefer was 79 when he died on May 15, 2007. He was unmarried and childless...In all, more than $460,000 was left to organizations...." More (Appleton Post-Crescent - WI 04.23.2008).
Annals of legal history - herein of Harvard Law Wives. "A thoroughly revised [Harvard] Law School Year Book will make it appearance next Thursday...[It is] dedicated it to Oliver Wendell Holmes, one-time Chief Justice of the Supreme Court. Marking the one hundredth birthday of the world-famous jurist, the book will include a biography and criticism by Owen Roberts, Associate Justice of the Court; an article entitled 'A Secretary Looks at Holmes' by W. Barton Leach '21, professor of Law; and a critical essay "The Student Views Holmes" by Robert F. Magill 3L. The dedication itself was written by present Chief Justice Charles Evans Hughes...Most revolutionary of the changes in the current issue of the Yearbook is the inclusion of two pages on the Harvard Law Wives. This group, comparable to he Harvard Dames, consists of the wives of the law instructors and students. This is the first time a page has ever been devoted to women in the history of the book...." More (Harvard Crimson 12.14.1940). Comment. The Harvard Law Wives was still in operation when I was a student at HLS (1964-1967). The school didn't admit women until 1950 (for the Class of 1953). When I was a student the ratio of male to female students was 95 to 5 in a class of 550. Further reading. Annals of great American courthouse traditions - the Courthouse Girls Club.
Retiring circuit court clerk tells all. "Jodie Nabors sums up her job at the Lowndes County Courthouse [in Columbus, Mississipp,] in one sentence: 'I just try my best to make everyone as happy as possible,' said Nabors, supervisor of the criminal division of the Circuit Clerk's office. Nabors has been working at the Courthouse for nearly 22 years and said she is enjoying her final weeks on the job before she retires next month...." More (Commercial Dispatch 04.22.2008). Comment. She says in the interview that one of the interesting things about the job is "that you pretty much know exactly what's going on in Lowndes County all the time." Does she "tell all" in the interview? Well, she does a pretty good job telling what goes on in a busy court clerk's office. As one who for many years depended on quality work from the people who worked in the office of clerk of appellate courts (previously the supreme court clerk's office) in St. Paul, I came to the conclusion that the people who work in clerks offices around the country are the unsung (and probably underpaid) heroes of the court systems.
Dept. of Silver Lining: Judge thinks bad economy = decreased caseload. "The District Court's first-quarter report prepared by Judge Donald L. Sanderson shows a decrease in all [criminal] case types compared to last year...Sanderson said he did not know all the circumstances of all the cases but he thinks the ailing economy is playing a large role in the decreases...Part of the decrease has to do with fewer road patrols, he said, but he thinks there are fewer violators as well. 'People know they can't afford tickets,' Sanderson said. 'They are having trouble paying their bills, they can't afford extra fines.'" More (Hillsdale Daily News - MI 04.22.2008).
Annals of great American courthouse traditions. "A 60-year tradition at the St. Joseph County courthouse is alive and still vital. The Courthouse Girls Club, organized in the late 1940s, first served as a voice of the female employees to the board of commissioners. Eventually, it made a transition into a girls-only dinner-night-out club. In recent years it has become more of a service club...." According to the story, the club originally was called the Kitty Girls Club and cost 25 cents a pay period to belong. Membership has dropped in recent years because "everybody is too busy." Moreover, "in today's world, it's not easy to get together for dinners." But the Courthouse Girls still do things like help decorate the courthouse at Christmas. Over the years they've also "sponsored Christmas parties" and "helped take care of the flower beds on the courthouse grounds," but it's not clear from the article if they still do that. "One of the most popular events used to be Cake Day at the courthouse where everyone was invited upstairs for a piece of cake during lunch time." From the way that is phrased, I'm guessing they don't do that anymore. But -- and this is the good part -- "The girls still take care of the pop machines downstairs and use their profits for projects." More (Sturgis Journal - MI 04.22.2008). Comment. This is a charming story, a bit of Americana that reminds me of my hometown on the eastern edge of the Great American Prairie.
C.J. Roberts shows sense of humor while presiding at moot court finals. Adam Liptak covers Chief Justice Roberts' judging of the moot appellate court finals at Columbia Law School. More (NYT 04.22.2008). Comment. I attended the moot appellate court finals at Harvard Law in the spring every year I was there. The huge Ames Courtroom in Austin Hall would be packed to capacity, and there was electricity in the air. In fact, the event was such a big deal that some of us guys (HLS was 95% guys then), brought dates with us. The chief judge on the panel was typically one of the SCOTUS judges who was a Harvard Law grad. I guessed then that the judges' seeming off-the-cuff witticisms were prepared in advance, something easily done since the judges were fully briefed on the case in advance. Would I put it past C.J. Roberts to do that? No.
The judge's throne. "In the main courtroom, the 7-foot Elizabethan judge's chair once sat on a track and had to be wheeled to the bench by the bailiff. The bench is made of five kinds of Italian marble, and even the public seating is finely carved walnut...." -- From an article about the admirable efforts of Macoupin County Sheriff Don Albrecht to "get the courthouse named to the National Register of Historic Places" and to "obtain grants to support its restoration." The courthouse was built in 1870 at a cost of $1.3 million and was known as "the million dollar courthouse." It attracts visitors from around the country and from other countries. More (Springfield State Journal Register - IL 04.21.2008). Comment. Sheriff Albrecht provides a pleasant contrast to those county commisioners in Seneca County, Ohio who are so intent on demolishing the historic and architecturally-significant Seneca County Courthouse. See, A plan to save an old courthouse from imminent destruction by politicians. Elsewhere. Miramichi's historic courthouse will find reuse as a museum and world-class tourist draw (Miramichi Leader - Canada 04.21.2008).
Jealous attack in bar on 'karaoke girl' lands judge and hubby in hot water. "[Local People's Court Judge Nguyen Le Lan] is facing disciplinary action after she attacked a karaoke girl who was 'entertaining' her husband...Lan's husband...has already been suspended from his post as a result of the confrontation. [He] had gone to a karaoke parlor...to discuss a land deal with a friend. Two of the bar's employees were 'entertaining' the men when Lan -- wearing a mask -- and a friend stormed in. Lan threw a fruit dish at her husband and smashed a beer bottle over the head of [a] karaoke girl...." More (ThanhnienNews 04.21.2008).
Judicial cronyism? "A relatively small group of attorneys, some of them old friends and all financial backers of judges handing out work, regularly receives close to half of all the tax-funded appointments to represent the poor in the juvenile courts, a Houston Chronicle analysis has found. The system, criticized as cronyism by some, has made several attorneys between $100,000 and $200,000 a year on the public dime...Some lawyers who seek a share of the work say local juvenile judges have found loopholes in a state law passed seven years ago meant to take the favoritism out of the appointment process. And some parents complain of lawyers who don't return phone calls, continually reset hearings or pressure their children to plead guilty to crimes they say they didn't commit...." More (Houston Chronicle 04.20.2008).
Judge who routinely sentenced people to death now opposes death penalty. "Protesters concerned about China's human rights record have found an unlikely ally in a former Beijing judge, who sentenced more than 1,000 people to death...Xuan Dong's long career took him almost to the pinnacle of the country's judiciary...But in 2001 he left to work for a private law firm that defends prisoners facing the death penalty...'There were times when I didn't think a criminal deserved a capital punishment but I had to announce one simply because the judicial committee said so,' he said...There are 68 crimes that carry a capital sentence -- ranging from theft of VAT receipts to damaging electric power facilities -- but it is often applied because of strictly political considerations...Abolishing executions altogether 'will take time,' he said." More (UK Telegraph 04.20.2008). Further reading. Burton Hanson on Crime and Punishment (position paper I posted as a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004).
The judge's Vegas trip. "Enter Charlie Bonner. They'd struck up a friendship playing racquetball at Larry's downtown club. 'You're under too much stress, fella,' Charlie'd told him. 'Come with me to Vegas for the weekend.' OK, Larry thought -- some light gambling, maybe take in a show. What he hadn't planned on was a showgirl. Was it the drinks? Something Bonner slipped in his drinks? Whatever. His head had been like a puff of cotton that night -- light, airy, devoid of common sense. Still, he'd hoped to put it all behind him -- until last week's phone call. Turns out Charlie was hooked up with one Vincent Palmieri, whose racketeering conviction Larry was reviewing under appeal. 'Vinny's got a flash drive with video of your Vegas trip,' a voice said...." -- From Judge is ready to play ball, chapter 22 of an entry in the LAT's novel contest by Constance Sommer (L.A. Times 04.20.2008).
Should justices be exempt from taxes? Are they sufficiently appreciated? "Supreme Court Judge George Kanyeihamba has expressed grave concern about endless attacks on judges and other judicial officers after the government exempted them from paying tax. Prof Kanyeihamba said it is high time Ugandans, including sections of the media, appreciated the importance of the role the judiciary plays in society...." Judge Kanyeihamba said that judges -- whose take-home pay per month varies from Shs4.5 million to Shs4.9 million and whose other benefits include medical, housing and guard allowances -- "are among of the least paid judges in the world." More (The Monitor via AllAfrica.Com 04.19.2008). Comments. a) I fail to see why judges's pay should be exempt from taxes. b) Do all judges everywhere feel they're underpaid and underappreciated? I think so. c) How the Ugandan judges' pay compares with that of other Ugandans would seem to me to be more relevant than how it compares with other judges around the world.
Short suspension recommended for VT judge caught with medicinal pot. "Martha Davis, 61, of Windsor...an attorney and part-time family court judge, was arrested last October after game wardens responding to her complaint about a dead deer on her property discovered 2 1/2 pounds of marijuana and 34 plants on her property...." Judge Davis, who suffers from an inflammatory condition and experiences severe migraine headaches, apparently grew the marijuana for personal therapeutic use, not for sale. The county attorney reduced the charge to a misdemeanor and recommended diversion. Now counsel for the professional responsibility board has recommended a two-month suspension. More (Boston Globe 04.19.2008).
Judge gets 3-year suspension for helping shield husband's assets. "[NH's] highest court Friday ordered a three-year suspension for embattled Superior Court Judge Patricia Coffey for making land deals to protect her lawyer husband's finances. Coffey must serve the suspension without pay, complete an ethics course and repay a panel for the costs to investigate her to one day return to the bench...." The legislature is considering whether to remove her. She will be allowed to practice law during the suspension. More (Nashua Telegraph 04.19.2008). Earlier. Legislators use 'bill of address' as alternative to impeachment of judge. Update. Judge Coffey resigns (Portsmouth Herald News 04.21.2008).
FLA JQC says SCOFLA can't intervene to block proceeding against judge. "No court, not even the state's highest court, can intervene in the affairs of the Judicial Qualifications Commission, attorneys for the JQC said in a sharply worded brief filed Friday with the Florida Supreme Court. The JQC was responding to an unprecedented effort to get the high court to intervene and block the JQC from proceeding against 1st District Court of Appeal Judge Michael E. Allen...." More (St. Petersburg Times 04.19.2008). Earlier. Annals of judicial colleageality; Judge is charged with misconduct for criticizing colleague in written opinion.
Rapid purging of old justice factory sausage? "Thousands of people with old, outstanding charges for petty theft, passing small bad checks and driving without a license would have those warrants erased under a proposal from a Hamilton County judge[, Nadine Allen, a Democrat,] and a former Cincinnati councilman[, Charlie Winburn, a Republican]...Allen and Winburn say their 'Rapid Purge' proposal could save the county up to $3.4 million over 10 years based on the theory that 960 of these old cases annually would otherwise go to trial and rack up costs for prosecution and jail stays...The courts ultimately dismiss 80 percent to 85 percent of such charges, Allen said. That's because the cases can no longer be proven...." More (Cincinnati Enquirer 04.18.2008). Allen is quoted elsewhere as saying, "I look at the courthouse as a justice factory, and I'm at the end of the sausage line. When it gets to me I have to throw it out because there's some ingredient missing." More (Business Courier of Cincinnati 04.18.2008).
The 'Malaysia Plan' for selecting judges. "Malaysia will set up an independent panel to help appoint new judges as part of legal reforms in the wake of high-level judicial scandals. Prime Minister Abdullah Ahmad Badawi announced the plan Thursday night as part of his pledge to clean up the judiciary, which has been plagued by allegations of favoritism, corruption and influence-peddling...." More (IHT 04.18.2008). Comment. The plan beloved by college political science profs that is currently being advanced by some self-styled good government types in Minnesota, the so-called Missouri Plan, was also a response to "favoritism, corruption and influence-peddling." Specifically, the Missouri Plan was instituted in Missouri in a direct response to experiences not shared by Minnesota, the electoral shenanigans of that notorious political machinist, "Boss Tom" Pendergast. Unlike Malaysia and Missouri, Minnesota has no history of judicial corruption or influence peddling. It is true that favoritism is often a factor in the governor's choice of judges. But we have a check on that in Minnesota, since the Minnesota Way doesn't deprive voters of a role in judicial selection, as the Missouri Plan mistakenly does. In Missouri all the voters get is a chance to participate in Soviet-style one-candidate retention elections, whereas the Minnesota Way allows for contested elections giving the voters real choices. Moreover, as we've explained elsewhere, the populist Minnesota Plan, which does not deprive voters of a role in judicial selection, has produced a much better judiciary than that produced by the MO Plan and we deplore the fear-mongering being used to try convince MN voters to give up their role, which they have played so responsibly, in judicial selection.
Judge is reassigned to 'less-desirable place' that is 'remote and lonely.' "Third District Judge Stephen Henriod stepped down abruptly from two cases last month because of a 'comment' he made that led someone attached to the cases to accuse him of bias...Shortly after, Henriod was reassigned to Tooele -- a less desirable location among judges -- by Presiding Judge Robert Hilder...Hilder said some judges don't like working at the courts in Tooele and Summit counties because there's only one judge, the workload is rapidly increasing and 'it's remote and lonely.'" More (Salt Lake City Tribune 04.18.2008). Comment. Sounds like my kind of place. "Colleageality" among members of a large multi-judge court is thought to be a virtue. "Colleageality," like most clichés, is used as a substitute for thought. In my opinion, if it is a judicial virtue, it is a vastly overrated one.
Judges decry 'stepmotherly' treatment, seek 10-fold pay increase. "On the agenda for discussion at the conference of chief justices presided over by CJI K G Balakrishnan is a recommendation that Supreme Court and high court judges be paid a salary of Rs 3 lakh a month -- a 10-fold hike on what they now get. The government decides on the salaries of judges but the conference, which began on Thursday, is considering the issue in a paper that has been submitted. It traces the government's 'step-motherly' treatment of the judiciary in terms of pay revision since Independence and argues that judges be put in a higher salary bracket than top bureaucrats...." More (Times of India 04.18.2008). Further reading. For some of the typical flaws and omissions and for the kind of approach I recommend to legislators who consider requests by judges for pay raises, see, my earlier mini-essay from 01.01.2002 titled I could be making lots more if I were Michael Jordan, along with Ten out of 10 pundits agree: Chief's Report on paltry pay was appalling, and The Chief Justice's annual harangue about his paltry pay.
Should judges have to curtail their vacation days to deal with backlog? "[T]he Supreme Court Friday asked [high court judges] to consider curtailing vacations by 21 days...'Taking into consideration the huge arrears of cases that have piled up in the high courts, they may consider increasing their working days to 231 as against 210 at present by suitably reducing their vacations,' said the agenda note for the ongoing judges' meet...The judges' meet, however, did not want the government to step in to curtail the high court vacations...[T]he total period of vacations in high courts varies from 48 to 63 days and judges are required to work for 210 days in a year...." More (Thaindian 04.18.2008). Comment. SCOINDIA perhaps felt obliged to make the request, since it is also seeking an increase of judges "in trial courts and high courts all over the country to fight the malady of huge backlog of cases numbering over 29 million." More (Thaindia 04.18.2008).
Brit judge found guilty of misconduct but he has chief's full confidence. "The Office of Judicial Complaints (OJC) has found the actions of Mr Justice Peter Smith, who should have recused himself from a hearing, amounted to misconduct. After a 10-month investigation by the OJC under the Judicial Discipline Regulations 2006, Peter Smith J has been reprimanded by the Lord Chief Justice Lord Phillips. An OJC spokesman said this means that the High Court judge will have the misconduct on his permanent record. However, Phillips LCJ, today (18 April) said: 'I consider that a firm line has now been drawn under this matter. Both I and the Lord Chancellor value the services of Mr Justice Peter Smith and he has my full confidence.'" More (The Lawyer 04.18.2008). Comment. Judge Smith is the judge who gained some fame for embedding a coded puzzle in his 'DaVinci Code' ruling. I posted a piece about the conduct complained of in this proceeding in July of 2007: When sitting judges negotiate with law firms over life after judging.
Claim: Boss of magistrates' court sought changes to benefit his wife. "[In 2004 John Grant Jones, who was then] boss of the magistrates' courts in North Wales[,] proposed staffing changes which would have led to his wife being promoted and a colleague demoted, it was claimed yesterday...Mr Jones [later was] sacked for gross misconduct. At [an employment tribunal in Shrewsbury] he is claiming unfair dismissal and breach of contract against the Department of Constitutional Affairs, which succeeded the Magistrates' Courts Committee...." More (UK Daily Post 04.18.2008).
Court recognizes new rule: person may not sit as judge in own case. "Holding the view that 'a person cannot be a judge in his own case,' the Supreme Court has ordered reinstatement of an employee sacked 16 years ago by the Cantonment Board, Pune. A bench of Justices A K Mathur and L S Panta while rejecting the plea of the Board that the principle of 'no work no pay' should apply, ruled that aggrieved employee Vijay D Wani would be entitled to 50 per cent back wages and continuity of service...While rejecting some of Vijay's arguments, the High Court...upheld Vijay's contention that the...three-member inquiry committee [that dismissed him improperly] participated in the deliberations of the subsequent Board meeting which voted in favour of the engineer's dismissal." More (The Hindu 04.18.2008). Comments. a) Sometimes an appellate court finds it has to reinvent the wheel. b) But it shouldn't take 16 years to do it. Maybe, as I've said before, India ought to outsource its backlog of cases to all the lawyers in the U.S. who'd be happy to serve as judges in the middle of the night via the World Wide Web.
In Scotland they criticized judges by 'peebling' them. "In centuries past Scottish judges ran the risk of being 'peebled.' This was the practice of the Edinburgh or Glasgow mob to show its disapproval of court judgments by pelting judges with stones. Such extreme criticism is no longer used, but it is fair to say that there is a sector of the public that thinks the bulk of the judiciary is out of touch with modern values and lifestyle. Judges and sheriffs in Scotland are overwhelmingly male, white and from a middle-class background. It is true that, unlike in England, the Scottish judiciary does not hail from the boarding school and Oxbridge circuit. Instead, they attended urban...." More (The Scotsman 04.18.2008). Want more on "peebling" judges? Read on...
George Rosie on 'peebling' judges and prosecutions for 'murmering.' "There used to be an offence at Scots law known as 'murmuring' the judges. It meant spreading wicked slanders about their legal eminences and dates from the days when Scots judges ran the risk of being 'peebled' (stoned) in the streets if the Edinburgh mob disapproved their judgments. Nowadays, Edinburgh folk are more deferential. The worst an incompetent judge can expect is early retirement on a fat pension. But, given the advent of the Scottish Parliament, the ongoing row about the way Scots judges are appointed and the recent Appeal Court ban on 'temporary' sheriffs, it seems a good time to run an eye over the men and (very few) women who dispense justice. And, at the risk of a serious 'murmur,' where better to start than at the top...." More (New Statesman 01.17.2000).
NY's supremes take their dog'n'pony show on the road. "On a typical day, dozens of trials, hearings, arraignments and other legal procedures take place in the Bronx court system, and often there is not a single spectator. But on Thursday, the hottest ticket in the Bronx -- aside from the Yankees-Red Sox game being played a few blocks down 161st Street -- may have been the scramble to get a decent seat in the Bronx Hall of Justice. The state's highest court, the Court of Appeals, had come down from Albany to hear oral arguments in a few selected cases at the Bronx's new glass-walled courthouse, and the public was invited...." More (NYT 04.18.2008). Further reading. For some of my views on judges going on the road, see, my comments and embedded links at Holding court in the great hall at Heidelberg College.
Annals of courthouse icons. "A federal judge on Wednesday agreed with the American Civil Liberties Union of Louisiana that a decision by Slidell officials to hang a portrait of Jesus on the wall at Slidell City Court was unlawful...The ruling by U.S. District Court Judge Ivan L.R. Lemelle...paves the way for the ACLU to collect the fees it incurred when it sued the court, Judge Jim Lamz, the city of Slidell and St. Tammany Parish...A week before Lemelle heard arguments in the case in September, court officials expanded the display to include other 'notable lawgivers,' replacing the Jesus portrait with the U.S. Constitution in the center position and moving the portrait to the end of the wall." Judge Lemelle's apparent view is that the current, expanded display is not problematic. More (Times-Picayune 04.16.2008).
Yet another Texan cleared by DNA, this one after 23 years of wrongful incarceration. "Thomas Clifford McGowan Jr. walked out of a Dallas County courtroom Wednesday a free man after DNA tests proved he did not commit a rape and burglary more than two decades ago. Mr. McGowan is the 16th Dallas County inmate to be cleared through DNA testing since 2001, the most of any county in the nation...." More (Dallas Morning News 04.17.2008). Comment. Back when he was Governor of death-penalty-happy Texas, George Bush never saw an Alberto-Gonzales-reviewed death warrant he wasn't gung-ho to sign. One wonders how many, if any, of the many executions over which he never lost sleep were of men who were factually innocent. Further reading. Burton Hanson on Crime and Punishment (position paper I posted as a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004).
Job-juggling judge quits. "A $129,700-per-year state probate court judge[, Michael J. Livingstone, 51, of New Bedford,] under fire for running a real estate business on the side and claiming tax write-offs as a private lawyer, has agreed to step down from the bench and publicly apologized...In addition to his continued management of High Low Properties...Livingstone [allegedly] accepted $49,000 in legal fees from his former practice between 2003 and 2006, while claiming business deductions on his tax returns between 2003 and 2005 as an 'attorney at law,' among them flowers he'd send to the funerals of former clients." The pending charges filed by the Commission on Judicial Conduct are being dropped as a result of the judge's resignation. More (Boston Herald 04.17.2008).
Will Turkey's judiciary 'close down' the ruling party? "[T]he Constitutional Court [has] agreed to take up a case brought by the chief prosecutor to close down the ruling and highly popular Justice and Development Party (AKP) on the grounds it has become a cover for anti-secular activity bent on replacing the secular regime with an Islamic one...The constitutional duel pits AKP, in control of the legislative and executive branches as well as the presidency, against non-elected but powerful and entrenched powers -- the judiciary and the military, both viewing themselves as guardians of secularism established by Mustafa Kemal Ataturk, founder of modern Turkey, in 1923." More (Asia Times 04.17.2008).
SCOTUS' Catholic majority at White House dinner for Pope. "All five Roman Catholic justices on the Supreme Court were invited to Wednesday night's splashy White House dinner in honor of Pope Benedict XVI...From the Supreme Court, the guests are Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and Clarence Thomas." More (AP.Google 04.16.2008).
Posner says judicial thinking ain't like umpiring. "Richard A. Posner, who sits on the U.S. Court of Appeals, has a unique insight into the topic of his book, How Judges Think. He tells John J. Miller that thinking like a judge is a lot different than, say, thinking like an umpire, where it's three strikes you're out: 'The problem with the courts, in especially the United States, is that the rules are often extremely fuzzy.'" Between the Covers with John J. Miller (National Review Online 04.17.2008). Further reading. "Some may recall that at his confirmation hearing, Chief Justice Roberts compared the judge's role to that of an umpire -- an analogy which attracted favorable attention from some law bloggers -- but which Judge Posner, quite correctly, calls an 'embarrassment,' since it ignores the reality that Supreme Court Justices, in particular, actually make new rules, while umpires do not." Brian Leiter, What Do and What Should Judges Do? (U. Chi. L.S. Faculty Blog 11.22.2006). Earlier. Imagining football -- or Department of the utter coincidence of great minds thinking alike; Profile of a 'judge' at work - after 35 years doing it; John Roberts' comparison of judges to umpires. Comment. Echoing Senator Lloyd Bentsen's comment during the debate with Dan Quayle, I say, "Justice Roberts, I've played many baseball games; I've observed many umpires; one umpire, who was half-blind, was a mentor of mine; Justice Roberts, you're no umpire." See, my mini-essay in the comment at One-eyed umps and the Rule of Law.
Judge unsure about plan to dangle him over a cliff in a cage. "Plans to dangle a NSW Supreme Court judge and two lawyers over the side of a notorious Sydney suicide spot to see where model Caroline Byrne died were cancelled yesterday...Justice Barr and lawyers for the prosecution and defence were to be lowered in a four-man cage attached to a crane and decide whether the jury for the trial commencing on July 17 should do the same. [Mr Gordon Wood, the former chauffeur to late stockbroker Rene Rivkin,] allegedly threw Byrne, his girlfriend, off a cliff at The Gap[, in Watson's Bay in Sydney's eastern suburbs,] in June 1995...." More (The Australian 04.16.2008). Comments. a) This exciting dangling of the judge and later of the jurors still could happen if the prosecutor can convince the judge of the need. If the judge approves the dangling of the jurors off the cliff, voir dire could get interesting. b) For an interesting case on jury views in criminal cases, see, Snyder v. Mass., 291 U.S. 97 (1934) (Cardozo, J.). For a news report of a jury view in a contemporary case, see, Simpson Jury is Taken on a Tour of the Crime Scene (NYT 02.13.1995).
Annals of judicial logistical nightmares. "Dozens of lawyers squeezed into a West Texas courtroom Monday as a judge started to sort out how to handle the custody battles of 416 children taken from a polygamist sect's ranch in central Texas. Since each child must have representation in court, an overflow crowd packed the Tom Green County courthouse as Judge Barbara Walther tried to marshal attorneys from across the state for the case...The case, which was moved from an Eldorado courthouse to a larger facility in nearby San Angelo, probably represents the largest family law case in the history of Texas, said attorney Tom Vick, a director of the State Bar of Texas...As of midnight Sunday, Vick had secured about 250 lawyers willing to work on the case pro bono. He was receiving two to three e-mails an hour from attorneys wanting to help, he said...." More (CNN 04.16.2008).
Judge gets four years in clinker for harassing court employee. "[Judge Rogelio Esteban, a] judge from Cabanatuan City[,] was sentenced by the Sandiganbayan to more than four years in jail for sexually harassing a court employee in 1997...The antigraft court also ordered Esteban to indemnify his victim, Ana May Simbajon, P100,000 in moral damages...." More (Inquirer - Philippines 04.16.2008).
Jury duty blogging. "A young woman topped everybody though by appearing in skin-tight jeans with strategic cut-aways around the waist, ala Cher circa 1973. Every few inches around there was a strip of exposed flesh, like a skin belt. Astounding. This would look good on approximately no one. Above that there was about 36 inches of midriff showing and then a bright red tank top that had fused with the upper layers of her epidermis. But hey, she was dismissed almost immediately and her obligation is now fulfilled. For all I know this outfit is hanging in her closet in a garment bag labeled 'jury duty.'" -- From an amusing account of jury duty by Robert Latham, Juristatic Park (Seattle Post-Intelligencer 04.16.2008).
Child laborer is rescued from ex-judge's house. "A child labourer was rescued from the house of a retired judge Taranath in LB Nagar on Tuesday. A case was registered against the judge under the Child Labour Prohibition Act 1986...." More (Andhracafe - India 04.16.2008).
History of political campaign blogging. Some credit the Howard Dean presidential campaign in 2004 with maintaining the first campaign blog. Others cite as the first campaign blog one maintained by a congressional candidate in 2002. Actually, one has to go back earlier, to 2000. I was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000. I began planning my first law blog, BurtLaw's Law And Everything Else, one of the pioneering law blogs, in 1999, but I delayed starting it until after the 2000 general election. My 2000 campaign website, the no-longer-extant VoteHans.Com, contained a personal campaign blog (weblog or web journal), i.e., a blog actually written and maintained by the candidate, not by some staffer. I like to think it was the first campaign blog (a/k/a weblog or web journal), although it's quite possible someone else independently came up with the idea and executed it contemporaneously in 2000 also. Because most "web archivers" were not in business in 2000, there has been no web record of my campaign website and campaign blog. For archival purposes and in the public interest, I have reproduced and reposted as near as I can given software changes, the backed-up contents of what was VoteHans.Com as it appeared in 2000. Here are the links: Campaign Home Page; Campaign Journal; Earlier Journal Entries; Even Earlier Journal Entries; Earliest Journal Entries; Endorsements and Contributions; Mandatory Retirement of Judges; Judicial Independence and Accountability; Questions and Answers; BRH Speech; Emerson for Judges; Quotations for Judges; MN Const. Art. VI; About BRH.
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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.