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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.
Psst! Wanna give up your right to vote for the best man -- or woman? Voters in MN and elsewhere are being "courted" in similar ways by the judicial establishment in well-financed campaigns to give up their historic role in selection of judges. 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 so "courted": 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.
Like movies? Need CLE credits? One of my favorite judges, Louis Schiff of Broward County, FLA, is returning to MN, where he studied casebooks and became learned in law, to present a two-day CLE seminar at Hamline Law School in St. Paul titled The Cinema and the Law: Are Lawyers Still Our Heroes? Saturday, July 12, 2008. 8:30-11:45 a.m. Sunday, July 13, 2008. 12:30-3:45 p.m. 11.75 MN CLE credits will be applied for.
Should MN judiciary be involved in any way in setting legislators' pay? "The Minnesota House today approved a constitutional amendment that would strip the Legislature of the power to set their own pay...Under the House amendment, a 16-member, bipartisan panel appointed by the chief justice of the Minnesota Supreme Court and the governor would set salaries. No lawmakers could be members of the panel...." More (Pioneer-Press 05.12.2008). Comment. I recently opined that SCOMN ought not be in the contracting business. Perhaps I'm just a congenital naysayer, but I'm even more opposed to any justice on the court having anything to do, directly or indirectly, with the setting of legislators' pay. A great constitutional law scholar at Harvard Law, Thomas Reed Powell, wrote, "From the standpoint of the judiciary, there are two sides to the shield of the doctrine of separation of powers. It is essentially the province of judges to know what the law is, but judges should not undertake nonjudicial jobs." Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation 25 (1956). I would be gravely disappointed to learn that any member of the court agreed in advance or cooperated in any way with this clever little plan, whether or not any "consideration" was given or anticipated in return. If I were chief justice and the clever little plan became a reality, I would refuse to play along with it.
Should Judge Cherie Blair resign? "Cherie Blair has insisted she will not resign as a judge after a senior barrister said publishing her memoirs had brought the law into disrepute. Gerald Butler QC said her actions were 'not appropriate' and 'she should not continue to sit as a recorder.'" More (BBC News 05.15.2008).
Judge says he carries gun to protect self against bailiff. "A judge in southwest Ohio says he has begun carrying a gun at work after ordering a [bailiff] to stay away from him...The county sheriff's records show that [the bailiff] made a verbal threat against the judge and four other court employees to another bailiff in January...." More (Bucyrus Telegraph Forum 05.14.2008).
Judge gets 30 days off for open-court profanity. "[MD's] highest court suspended a Baltimore County judge[, Bruce S. Lamdin,] yesterday for making profane and uncivil comments from the bench, issuing the harshest punishment for a Maryland judge in more than two decades and, observers said, sending a message to judges to watch their behavior. The Court of Appeals...accepted a judicial commission's recommendation that the judge be suspended for 30 days without pay...." More (Baltimore Sun 05.14.2008). Earlier. Investigating a trial judge: why & how? Saying whatever comes to mind -- in open court?
Judge gets 6-month suspension for role in transaction. "A Windsor County[, VT,] assistant judge[, William Boardman,] has been suspended for six months because of his role in negotiating the sale of the former headquarters of the county sheriff's department to a nonprofit organization the judge was involved with...[T]he board's 20-page decision [said]...'While he seems thoroughly familiar with the authority and entitlements inherent in his judicial position, he either does not understand or is simply unconcerned with the obligations of the public trust.' The board found that Emerge got special treatment from Boardman, buying the building at a reduced rate with several debts canceled. At one time, the property was listed for sale at $189,000, but in October Emerge paid $71,000 for it...." More (Boston Globe 05.14.2008).
Chief loses primary election; controversial vacation photos did him in. "[Elliott 'Spike' Maynard, t]he chief justice of the supreme court in West Virginia, who vacationed on the French Riviera with a CEO who had millions of dollars' worth of appeals before the court, will no longer be able to consider cases because voters there yesterday denied him the chance to run this fall...." More (ABC News 05.14.2008). Earlier. Those darn vacation photos. (That's the C.J. on the left, the CEO on the right).
Are there no independent courts in Russia? "[Yelena Valyavina, first deputy chairwoman of the Supreme Arbitration Court,] has testified in court that a Kremlin official threatened to derail her career if she did not reverse a ruling handed down against the Federal Property Fund...Valyavina testified as a defense witness Monday in a libel lawsuit filed by [the official] against radio news program host Vladimir Solovyov...[who] said [on the radio] there were 'no independent courts in Russia,' but there were 'courts dependent on [the official]." More (Moscow Times 05.14.2008).
Senior judges to take a pay cut. "The Nevada Supreme Court has reduced the hourly rate paid to "senior" judges in a move to trim costs...Senior judges were paid at an hourly rate of $100, but that changed May 1 to $86 per hour, and they'll now be paid by the half day or full day rate in the hopes of cutting down on costs...The [Reno Gazette-Journal] on Monday reported that senior judges earned hundreds of thousands of dollars annually in recent years while working quarter or half time on cases...Senior judges are paid in addition to their retirement checks. They are compensated for travel, reimbursed for personal health insurance costs and have their State Bar dues covered each year...." More (San Diego Union-Tribune 05.13.2008).
Judges to toss wigs, get new 'Star Trek' gowns. "British judges have abandoned a 300-year-old tradition of wearing horsehair wigs to a chorus of mockery from fashion critics and traditionalists, who say the new robes have turned them into Star Trek look-a-likes...[Starting in] October, judges hearing civil and family cases in England and Wales will don a new robe designed by Betty Jackson, who also makes 'funky British clothes for aspiring funky British girls.' They will wear simple black gowns fastened with poppers (snap fasteners) and decorated with gold, red or lilac bands depending on their seniority...." More (Melbourne Herald-Sun 05.13.2008). Commenting on Lord Phillips, modeling the new gown, Hadley Freeman, a fashion editor at The Guardian, said, "Look at this poor man: instead of appearing imperious, the lord chief justice...now just looks like the man who sells you tickets for the Star Trek Experience at Caesars Palace in Las Vegas. And judging from his expression, he knows it." More (The Guardian 05.13.2008). Said Professor Sir John Baker, St. Catharine's College, Cambridge, "At a time when the law of England faces perhaps the biggest threats in its history, it is severely unsettling to the public to find our judges wanting to look like warlords from outer space." More (Times 05.14.2008). Comment. Perhaps on the theory that "Hey, change is good," the justices of the Minnesota Supreme Court will consider wearing the new costumes. More than one wag has suggested that the entrance of the justices in their coldly modern courtroom in the Minnesota Judicial Center -- all of them suddenly materializing simultaneously at their appropriate spaces at the bench -- is reminiscent of people being "beamed down" from above in Star Trek movies and TV shows. I've helpfully "Photoshopped" the head of Justice Paul Anderson onto a pic of Lord Phillips wearing the new gown, so our loyal Minnesota readers can get an idea of how members of our court might look wearing them. I would suggest further -- again, helpfully -- that the classic Star Trek theme song, or perhaps the 2001 theme (a/k/a Strauss' "Thus Spake Zarathustra") be played during the awe-inspiring "Entrance of the Yustices." Further reading. For links to other postings dealing with judicial fashions, judges dressing up as clowns, judges getting in trouble for dressing up as Santa Claus, judges getting nabbed wearing blackface, male judges driving under the influence wearing dresses, men in long flowing gowns upholding the ban on same-sex marriage, etc., see links at Latest developments in courthouse fashions.
Judges warned over work slowdown over pay. "A judicial commission [in NYS] on Monday warned judges not to refuse to hear cases involving state lawmakers and their firms as a way to protest the lack of a raise. Up to two dozen judges reportedly have recused themselves from cases involving lawmakers or their firms because Chief Judge Judith Kaye is suing the Legislature over the pay issue...." More (N.Y. Daily News 05.13.2008).
Should judicial wannabe's have to take psychological tests? "The Judicial Appointments Committee Sunday accepted a precedent-setting decision whereby judicial candidates will be interviewed by psychologists, and a psychologist will accompany them during the candidates course at the Institute for Judicial Supplementary Training...." More (Haaretz 05.13.2008).
Study: current SCOTUS is 'most conservative' in 70 years. Summarizing Richard A. Posner and William M. Landes, Rational Judicial Behavior: A Statistical Study (U Chi. L. & Econ., Olin Working Paper No. 404 (2008), U.S. News reports: "Posner and Landes use a database that includes the political background and voting records of the past 70 years of Supreme Court justices -- who appointed each justice and how the justices decided every case -- to come up with a ranking, from most conservative to least conservative, of the 43 justices who have served on the court since 1937. Their conclusion: Four of the five most conservative justices to serve on the Supreme Court since Franklin Roosevelt [was President]...are currently sitting on the bench today." They are: Thomas, Scalia, Alito and Roberts. More (U.S. News 05.13.2008). Comment. Call them the "Four Horsemen of the Dead Constitution."
The coffee guy at the 'Law and Order' courthouse. "Despite the driving rain, the customers lined up at the coffee wagon in front of State Supreme Court in Manhattan on Friday morning, not so much to get their cup of joe as to see the man they call Joe...It had been four weeks since Joe, the 26-year-old vendor whose real name is Jaweed Naseri, was seriously injured when a car jumped the curb and smashed into his coffee wagon...He said it would probably be another couple of months before he was back at work full time, which involves waking up at 2 a.m., driving from his home in Douglaston, Queens, to a commissary in Brooklyn to get supplies, and setting up in front of the courthouse by 4. His younger brother, Mokhtar, has been filling in for him. On Friday, Mr. Naseri had stopped by just to say hello to his regulars, who include judges and jurors, court officers and construction workers...." More (NYT 05.10.2008). Comment. Since Joe doesn't have medical insurance, perhaps the producers of Law and Order can give him a paid speaking role in a couple episodes in order to help him out with his considerable medical expenses.
Retired judge finds fulfillment visiting inmates every Sunday. "After she retired from the service, a former judge now finds fulfillment in visiting inmates at the Naga City District Jail in Bicol. The Catholic Bishops Conference of the Philippines (CBCP) said former judge Mericia Palma is now a member of the Caceres archdiocese's Episcopal Commission on Prison Matters...Palma and her group [make] weekly visits to inmates at the Naga City District Jail on Sunday afternoons. The group, which includes members of the Ladies of Charity, an organization of professional women, has been into this apostolate of visiting inmates in the city since the 1950s...After the [Sunday] mass, the group engages the inmates in dialogues and listens to the inmates' concerns...serve food...[and] gather inmates' letters for their next of kin, which they promptly mail Monday morning...." More (GMA News - Philippines 05.12.2008).
Should SCOMN be in the contracting business? "[T]he National Arbitration Forum is a giant...The company, which has 1,600 arbitrators worldwide, recently told Minnesota officials -- in a bid to administer state claims -- that its 'administrative capabilities are simply unrivaled.' Yet the Forum has begun to attract the attention of consumer advocates and legal scholars who see it as emblematic of all that is wrong with mandatory arbitration...In March, San Francisco filed a lawsuit against the Forum, accusing it of "operating an arbitration mill" that favored credit-card companies...The [state] contract is said to be worth an estimated $4 million, and the Minnesota Supreme Court expects to decide the winning bidder by July...." More (Star-Tribune 05.12.2008). Comment. Ought the Minnesota Supreme Court be in the business of picking a favorite among arbitration businesses? To ask the question is to answer it.
Fifteen jurors waitng in line for one toilet -- is that doo process? "There is something inherently noble about a legal system where a retired iron worker with a 10th-grade education, a woman born in another country donning an Asian-style jacket, an unmarried black postal worker, and a goofy, pot-bellied journalist like myself are called to determine justice. The people described above were four recent members of a Will County jury pool, which included myself. The fact people from all corners of society are the critical component in a court trial speaks volumes to the strength America's justice system. It's hard to find any lofty virtues about the same group [of no fewer than 15 people] waiting in line for a single unisex bathroom...." More (Kankakee Daily Journal - IL 05.11.2008).
Comment. If the judge and other courthouse employees were required to use the same "facilities" as the jurors, the situation would be remedied with all deliberate speed. Elsewhere. Courthouse feud erupts over bathroom key (Boston Globe 05.08.2008).
Scottish accent trips up court stenographers -- in Scotland. "Stenographers employed by an English company are littering court transcripts with mistakes because they are bamboozled by Scots accents, senior lawyers have claimed. Leading advocates have complained that Scottish names such as Barlinnie have been wrongly transcribed as 'Barrel Annie' and that words such as 'libelled' and 'fanciful' have been replaced with 'liable' and 'fanciable.' The errors by staff working for the Devon-based Mendip Media Group, which was awarded the stenography contract by the Scottish Courts Service in 2006, have prompted a flood of complaints by lawyers and judges...." More (Sunday Times - UK 05.11.2008). Comment. This is what happens when Government -- Brandeis' "Great Teacher, for good or ill" -- outsources its soul in order to save a few pennies.
Survey of court users, including accused, is planned. "Court users...are to be surveyed for their opinions on the 'standard of service' they receive from the justice system.The Scottish Government will spend £150,000...[R]esearch experts...will survey judges, lawyers, witnesses, relatives of the accused and victims, as well as police officers and the accused...about waiting times, helpfulness and politeness of staff, comfort and cleanliness of accommodation, catering facilities, and ease of finding the courts and preparation rooms...." More (Scotsman 05.11.2008).
Dissatisfaction with 'merit selection' in Tennessee. "Instead of diluting the influence of politics over the courts, the ['merit'] system has aggravated it so much that even Democratic Governor Phil Bredesen has had enough. The commission has sent him the same nominee repeatedly in an effort to shoehorn a favorite son onto the state's highest courts. Concerned that the best candidates weren't put forward, the Governor in 2006 said he was 'taken aback by the game-playing' of a commission 'trying to force people down my throat'...The Tennessee plan was conceived as superior to the political brawls of states that elect their judges directly. But special interests have ended up more empowered than ever in a system less transparent and accountable." More (WSJ 05.10.2008). Comment. It turns out that in Tennessee, as elsewhere, "merit" is just a euphemism for the candidates who are favored by lawyers. Some states "dress up" the commissions with lots of "citizen" members, but if you think ordinary citizens get to serve, think again. If you look at the list of people who were handpicked to serve on the Quie Commission -- which, as we predicted it would do, advocated abandoning the Minnesota Plan and adopting the Missouri Plan (which deprives voters of their historic role in selecting judges) -- you'll get a good idea of the type of people who'll wind up serving on any "merit" commission in Minnesota. Such commissions are typically composed of the "usual suspects" that are rounded up whenever needed to serve pablum to the electorate. Stated differently, these commissions typically consist of members of the political power elite handpicked by the political power elite to serve the interests of the political power elite. Who are they? C'mon, you know.
Serving up roast judge. "On Friday, members of the Muncie Bar Association and county court system paid their respects to Delaware Circuit Judge 5 Wayne J. Lennington, who is retiring next week, with a good-hearted roast at Springwater Park...Lennington, 77 -- who resigned this spring amid a judicial conduct review and criminal investigation into his business dealings -- said he was looking for a job, but is likely to continue practicing law...One of the biggest laughs came just before Lennington's longtime friend, attorney Don Dunnuck, spoke. Ralph and Vicki Craig, a member of Lennington's court staff, led in a donkey wearing a judicial robe and Lennington's trademark bow tie." More (Muncie Star Press 05.10.2008).
Dahlia on Nino. Dahlia Lithwick, Persuasion. Justice Antonin Scalia is persuadable. Or he finally thinks you are. (Slate 05.10.2008). Comment. Lithwick offers her take on Justice Scalia's media campaign to sell a) his new book of tips for lawyers on being better advocates and b) his theory that our constitution is a "dead constitution," not a "living" one. He's given his "dead constitution" speech/spiel a thousand times, so that's not new. See, e.g., Justice Scalia delivers one of his stock speeches -- again, and Scalia's one-man show hits the road again. What's new is his opening up to the media. Lithwick has her own views on why he's doing it. Partly he's doing it to peddle the book. More, though, I think he's doing it to take center stage away from the young neophyte, John Roberts. In the years ahead I look to Scalia and Roberts each slowly but surely creating "distance" from the other. As for the book (Bryan A Garner and Antonin Scalia, Making Your Case: The Art of Persuading Judges), it's excerpted in the May issue of the ABA Journal. I've read many of the many books on the art of appellate advocacy, etc. It appears to be on a par with the better ones -- no worse, no better. After you've read one of the better ones, you've read them all. Scalia is a good writer -- in his opinions. But the book is b-o-r-i-n-g to anyone familiar with the genre. Save your money and pick it up a year or two from now in one of those grocery-bag-full-of-books-for-$5 used book sales put on by your local library's "Friends of the Library" support group. That's how I got my copy of the recent bio of Justice Blackmun by Linda Greenhouse.
Judge DiGiuseppe is community theater veteran. "Ontario Court Judge and actor Dino DiGiuseppe says this is his third time taking part in a community play. 'It's a blessing. You know, how many people get this opportunity at any stage in their life, let alone, after you're settled more or less, to do something like this? It's whimsical, it's wonderful, it's fun. It's a bit of work, but what isn't, right? It's worthwhile.'" More (Thunder Bay Source 05.09.2008). Further reading. Paul Anderson, noted thespian?
Can a unilingual anglophone do the job at SCOCAN? "Supreme Court of Canada judges need not be bilingual and it would be 'unfortunate' if Prime Minister Stephen Harper went out of his way to make it a main priority when replacing retiring Justice Michel Bastarache, says a former Supreme Court judge[,] John Major, a unilingual Calgarian who retired in 2005...." More (Montreal Gazette 05.08.2008).
Judicial marshal is fired for alleged 'sexy actions' with inmate. "Court officials say a judicial marshal in Milford Superior Court has been fired for his alleged sexy actions with a female inmate...." The marshal allegedly provided doughnuts and cookies to the 19-year-old inmate in exchange for her "flash[ing] her breasts and kiss[ing] another female inmate while [he] watched." The marshal denies wrongdoing. More (Hartford Courant 05.108.2008).
Lawyer Alan Shore takes on SCOTUS, alleges confirmation perjury. "When the Scalia character interjects sharply, 'You are getting so far off point,' Shore shoots back: 'My point is, who are you people? You've transformed this court from being a governmental branch devoted to civil rights and liberties into a protector of discrimination, a guardian of government, a slave to monied interests and big business and today, hallelujah, you seek to kill a mentally disabled man.'" Later: "The 'chief justice' has had enough. 'Mr. Shore, I don't like your demeanor, your tone,' he says angrily. 'I would remind you of where you are.' That's what launches Shore into his tirade. 'I know exactly where I am,' he says. 'And let me tell you, you folks are not as hot as all get-out.' As his colleagues sink in their seats in embarrassment, Shore continues by ridiculing the idea that justices in their confirmation hearings would say they've never thought about how they'd vote on abortion. 'No perjury there?'" Tony Mauro, David E. Kelley's 'Boston Legal' Takes On the Roberts Court (Legal Times via Law.Com 05.06.2008).
High court removes judge who used false SSN 25 years ago. "The state Supreme Court yesterday ordered Philadelphia Municipal Court Judge Deborah Shelton Griffin removed from the bench, saying that her felony convictions on charges of using a false Social Security number prohibited her from holding an office of trust. The high court, in a 4-0 decision, ruled that Griffin's 1984 federal convictions constituted 'infamous crimes,' which under the state constitution bars a person from holding an office of trust or profit in Pennsylvania...." More (Philadelphia Daily News 05.07.2008). Comment. So, is there no room for redemption and reformation in PA? Is the House of Justice in PA pure now?
McCain promises to nominate Judge Dredd to SCOTUS. "Highlighting an issue he plans to use aggressively in the general election campaign, Sen. John McCain stated 'the federal courts need some good old fashioned hanging judges,' and pledged to nominate Judge Dredd to once again bring justice swift and sure to the streets...'My nominees will understand that they will do just what I tell them to,' McCain told a crowd of several hundred at Wake Forest University's Wait Chapel...." More (Unconfirmed Sources - Satire 05.07.2008).
Are you sure you're really a judge? "John F. Duffy, who teaches at the George Washington University Law School,...has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes...Since 2000, patent judges have been appointed by a government official without the constitutional power to do so...[T]he Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution...." More (NYT - Adam Liptak 05.06.2008). Comment. Not sure why, but this sort of not-even-close-enough-for-government-work botching up of things by the Executive reminds me of the example of MN's Governor Arne Carlson, who having set out to establish himself as "the Veto King," botched his attempted vetoes of 14 bills in 1992 by failing to return the bills to their house of origin within the state constitution's three-day-return requirement. See, Peter S. Wattson, Veto Power of the Governor of Minnesota (1995). See, also, United States v. Giordano, 416 U.S. 505 (1974) (Attorney General violated law clearly specifying that only he or a specially designated Assistant Attorney General "may authorize an application to a Federal judge...for...an order authorizing or approving the interception of wire or oral communications").
Annals of judicial valets. "Under the table and beneath their judicial robes, Court of Appeal judges tend to wear hiking boots, glamorous heels or trainers from early morning tennis matches. By far the most surprising thing about my time as a judicial assistant was discovering that appeal court judges are a fascinating group of people and a term or two with one is a useful and exciting opportunity for any baby barrister or trainee solicitor...." Barrister Rachel Oakeshott, A masterclass in becoming a better lawyer (UK Times 05.06.2008). Comment. Hmm. In all my years working with the justices of SCOMN, I don't believe I ever peeked "under the table and beneath their judicial robes." Presumably Ms. Oakeshott didn't either. Perhaps she saw them "disrobe" after a hearing, by which I merely mean she saw them "remove their robes" after the hearing, revealing aforesaid hiking boots, etc.
Judge is in trouble again. "A former Blair County judge who abruptly resigned from the bench 22 years ago after an investigation into his alleged sexual assault of a young girl has been charged with a similar offense. Richard A. Behrens, 65, of Tyrone is charged with indecent assault of an 18-year-old stemming from an April 3 incident in Snyder Township...Behrens has been sent a summons by state police charging him with one count of indecent assault, a second-degree misdemeanor...." More (Altoona Mirror 05.06.2008).
Judge Glenda Hatchett campaigns for Obama in Indiana. "Judge Glenda Hatchett, or as she's simply known on her popular syndicated TV show -- Judge Hatchett -- was in Elkhart campaigning for Obama today...." More (FOX 28 05.05.2008). Comment. Might Judge Glenda the Good be on his short list for SCOTUS?
Paul Anderson, noted thespian? "A Minnesota Supreme Court justice was waxing eloquently the other day, while sitting in a finely appointed office in the State Judicial Building, but he wasn't discussing red-light cameras or concealed guns in a church parking lot. This judge was telling about his service in the Civil War and his days fighting Indians and being mayor of St. Cloud. It was Justice Paul Anderson pretending to be Justice Loren Collins, who served on the bench from 1887 to 1904. Anderson was practicing for appearances this month, when he'll dress up as Collins and speak, in character, to visitors about life in Minnesota 100 years ago." More (Joe Kimball - MN Post 05.02.2008). Comment. It is good to see that Judge Anderson's talents as an actor are finally being recognized.
Latest on judicial term limits. "A proposed initiative to term-limit Colorado judges hit a wall Friday when proponents were unable to gather enough petition signatures to put the measure on the ballot. Former state Senate President John Andrews said his committee, Limit the Power, lacked enough money to pay signature-gatherers, making it impossible for the group to meet a May 14 deadline. 'Court reform will have to wait another year,' Andrews said...." More (Denver Post 05.02.2008). Comment. For eight 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, b) abolish any judicial term limits that are in place, and c) retain direct judicial elections of the Minnesota variety.
The path of the law in New Hampshire. "The state Supreme Court has upheld the conviction of a former court security officer charged with prostitution for offering a couple money to have sex while he watched. But the court left undecided a broader question in the case: Is it illegal to make pornographic films in New Hampshire?...Under the state's prostitution law, it is illegal to pay someone to engage in sexual contact for the purpose of sexual arousal or gratification. That includes paying or even offering to pay two people to have sex with each other...." More (Concord Monitor 05.04.2008). Comment. New Hampshire presumably isn't exactly the production center of the for-profit pornography industry, but that doesn't mean its residents aren't producing their share of the country's adult pornography. The combination of low-cost digital cameras, user-friendly internet posting and sharing sites, changing sexual mores (many wives more-than-willing to pose for their hubbies while knowing or at least taking a chance the pics will be posted on amateur pornography sites), etc., has resulted in an amateurization/democratization of DIY pornography production and distribution. We suspect New Hampshire residents generously contribute their share of pornography to the growing international archives of easily-obtainable impossible-to-regulate free and entirely legal adult pornography. Indeed, we forecast the day in the not-too-distant future when we'll fairly regularly be witnessing politicians, including judicial politicians (perhaps even some in New Hampshire?), finding it necessary to "explain" some risque pics of them that were taken and posted online in their wilder pre-political days. It'll be sorta like having to explain away smoking pot in college was for Bill Clinton. I'm not saying the development is good or bad. I'm just telling it like it is. Indeed, we're approaching the day when everything -- not just a baby's delivery but also his conception -- will be on tape. Read on....
Judge forbids publication of tapes of politician's DWI calls from jail. "A circuit judge has stopped The Post and Courier from publishing audiotapes of phone calls state Sen. Randy Scott made from his holding cell at the Dorchester County Detention Center last month. And the judge has ordered the Dorchester County Sheriff's Office to stop disseminating the tape. Scott was arrested on April 19 and charged with driving under the influence...." More (Charleston Post-Courier 05.03.2008).
Celebrating a divorce with a courthouse hot dog. "When you get married, it's typically in a church or temple and with a banquet afterward with something like prime rib. When you get divorced, it's invariably at a courthouse and you leave after signing off with the judge. But where to eat? How about a hot dog from a streetcart vendor outside? Dabbed with hot mustard and stuffed with tangy sauerkraut, the courthouse dog is the taste of freedom, some might say. 'These are the best hot dogs in the state,' said George Garland, a bail bondsman and a fan of the Courthouse Dogs cart in front of the Derby courthouse...." More (CT Post 05.04.2008).
Former part-time judge sues city in federal court for retaliatory firing. "A former municipal court judge claims the city of Harlingen fired her in retaliation for not doing favors for politically connected residents, according to court records. Former Municipal Court Judge Rebekah R. Syck said she refused to act on a request by City Manager Craig Lonon because it was contrary to the city's ethics ordinance, court records show...[The ordinance] forbade her and other judges from arraigning politically connected suspects after-hours...." Sykes claims the nonrenewal of her contract was retaliation for her refusal to violate the ordinance when told to do so. More (Brownsville Herald - TX 05.04.2008).
One-day summer judging camp for kids. "The third Badger Livestock Judging Camp will be held on Thursday, June 26, at the Stock Pavilion on the campus of the University of Wisconsin-Madison. The camp is for youth who have completed third grade through one year past high school who are interested in building their knowledge on the evaluation principles associated with market and breeding beef, swine and sheep...." More (Fond du Lac Reporter 05.04.2008). Comment. Too many of our common law judges have never learned the basics, things like livestock judging, beauty pageant judging, reality TV judging, etc. Right?
The illegible handwritten court order, scribbled in green ink. "The [magistrate's illegible] order had released Radha...on bail. Radha...had been accused of abducting a 21-year-old girl...While hearing a habeas corpus petition filed by her father,...a division bench comprising justice D Murugesan and justice V Periyakaruppiah, was surprised [at] the illegible order, scribbled in green ink...The paper was circulated to every advocate present in the court hall, and none of them was able to make out anything...Expressing anguish at the manner in which the subordinate judiciary functioned, justice Murugesan cancelled the bail order...." But, by then, Radha had left the courtroom. "Referring to this, justice Murugesan said, 'I saw that person here when the matter was taken up. But he left after his counsel gestured him to leave.'" More (Times of India 05.04.2008). Earlier. A couple years ago we posted an entry jokingly titled Ought a judge be removed because of his bad handwriting? What prompted our comments was an order filed by a Mississippi judge directing the clerks of court in four counties under his jurisdiction to refuse to accept any pleadings or motions not bearing legible signatures. The judge's name was not typed on the order and his signature was illegible. I said, in part:
While it would offend Justice Scalia, see here, it wouldn't bother us if some judge issued an order giving himself a Cardozian "roving commission" to direct all elementary schools everywhere to reinstute the teaching of the old Palmer Method of teaching good penmanship. People used to praise my late mother's perfect penmanship, but most of members of her age cohort had good penmanship -- hers, in being perfect, was just a little bit better than average. Nowadays many kids never learn cursive handwriting. Perhaps the lawyers in question (maybe even Judge Gordon) can't write their signatures legibly. If so, might they not claim a violation of due process and/or equal protection if a clerk's Mickey Mouse-insistence on legibility prevents them from filing pleadings?
A judge responds to O'Connor's 'hyperbole.' U.S. Circuit Judge William Pryor, speaking at Harvard Law, criticized Justice O'Connor for her frequent claims, in what is a stock speech, (my characterization) that judicial independence is under grave threat these days, that, indeed, "the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history." According to The Harvard Law Record, Judge Pryor "cited as examples of times of real challenge to the judiciary the Jefferson presidency, the Reconstruction, and the New Deal era, pointing out the relative absence of any such explicit attack on the judiciary in our own age." He said that O'Connor's hyperbole "is both factually inaccurate and cheapens the sacrifices of those judges who suffered palpable and terrible threats, such as the judges in the Deep South during the civil rights struggle." During a Q&A he said that he "is not convinced that the election of judges poses a grave threat to [judges'] independence, despite coming from Alabama, the state which spends more money on judicial election campaigns than any other." Maximilian Amster, Judge Pryor on Judicial Independence (Harv. L. Record 03.15.2007). Further reading. Law and Judicial Elections; Judicial Independence and Accountability.
Justice O'Connor says Minnesota should emulate Arizona. The well-financed folks who don't like Minnesota voters having a say in the selection of judges brought in former Justice Sandra Day O'Connor to give the same speech she's giving in other states that give voters a say in judicial selection. Her message: you all should emulate Arizona. She said the so-called merit system has "worked very effectively, more so than the election system did," leading to greater racial and ethnic diversity. More (MPR 05.02.2008). See, also, Rochelle Olson, Ex-justice urges judges not to take the money if they run (Mpls. Star-Trib 5.02.2008).
Comment. We're glad Justice O'Connor is pleased with her home state of Arizona. Interestingly, there are a lot of people in Arizona who aren't pleased with it. Says one critic: "There is a common denominator that jumps out, even to the most causual observer, in the recent judicial appointments made by Gov. Napolitano. The true measure of merit in the merit selection process is obviously being a registered Democrat. Eight longtime superior court judges have recently retired. There was a mix of party affiliations among them. Napolitano has so far filled six of those vacant positions -- with -- you guessed it! DEMOCRATS!" Merit takes a back seat in judicial appointments in AZ (Seeing Red AZ 08.23.2007). That is, "Merit selection [in AZ] simply conceals its very political nature with a series of overlays...." More (Seeing Red AZ 03.21.2008). As for the claim of greater diversity, read on....
Expert says Scotland's judicial merit selection board fails female applicants. "A leading expert in Scots law has attacked the board responsible for recruiting Scotland's judiciary for its hypocrisy in their treatment of female candidates. Alistair Bonnington, solicitor-advocate and former honorary professor of law at Glasgow University, said the Judicial Appointments Board (Jab) was treating female applicants unfairly and that lay members, with no legal background, are failing to spot the qualities required for top jobs in the judiciary...." More (The Herald 05.02.2008). Comment. One of the many virtues of the "Minnesota Plan" is that if an attorney feels that a governor's screeners screened her out unfairly or that a governor's appointee is bad, that attorney can always take her case to the voters by challenging the appointee when the appointee files for a full term. As some prominent judges stated in a letter dated 03.28.2008 to the Minnesota Lawyer opposing the proposal to substitute Missouri's Plan for Minnesota's Plan, "The current system allowed an African-American, Justice Alan Page, to win election to an open seat in the Supreme Court, the first person of color to serve on that court, and allowed Judge Susanne Sedgwick to integrate an all male bench in Hennepin County in 1974." Letter to the Editor: Judges: Retention elections will hurt Minnesota (Minnesota Lawyer 03.28.2008). See, also, Stephen C. Aldrich, Minnesota Judicial Elections: Better Than the 'Missouri Plan' (Bench & Bar Oct. 2002).
Justice urges preemptive strike against weapons of incumbent destruction. Minnesota Supreme Court Justice G. Barry Anderson, participating in a panel discussion of Justice O'Connor's remarks, is quoted as saying that Minnesota can't wait for bad things to happen but must act preemptively: 'The problem with waiting is that there was a time when Texas wasn't Texas, Ohio wasn't Ohio, and Wisconsin wasn't Wisconsin,' he said. 'And what you find in these states, is that once they get into the soup of highly partisan, competitive, expensive judicial elections, they can't get out.'" More (MPR 05.02.2008). Comment. When did we most recently hear that tired old argument of the Ancient Scariner about the imminent threat that requires us to take preemptive action? The truth is, the Minnesota Power Elite has never liked the idea of voter participation in judicial selection and has been trying to get the state constitution amended since before I was born. The threat of "big money" campaigns is just the aforesaid elite's latest argument to get us all to adopt the Missouri Plan, with its citizens commissions that are dominated by lawyers, politicians (including judicial politicians) and other members of the power elite and its retention elections. We forecast that if the amendment is passed, the Minnesota judiciary will come to rue the day because, as Pennsylvania judges will tell you, retention elections don't prevent big-buck interest groups from targeting judges or give judges more security in their positions. As Paul Carrington has noted, the retention election may be the "worst kind of election to conduct for judges who have been sitting for long enough to acquire a record that can be mischaracterized on major league outfield fences." Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, 61 Law & Contemp. Probs. 79 (1998). Further reading. See my critical essay and embedded links at Strib. urges longer terms for judges, no role for voters in their selection. See, also, The Return of the Ancient Mariner -- or is it Minnesota Scariner?
Judge settles malicious prosecution case, pays $100K and apologizes. "In an unusual act of contrition, a state court judge has publicly apologized and agreed to pay $100,000 to Silicon Valley billionaire Tom Siebel for wrongfully besmirching him in a lawsuit she filed as an attorney more than a decade ago. 'I write to express my sincere regret for pursuing claims against you that were determined to be without merit,' San Mateo Superior Court Judge Carol Mittlesteadt wrote in an apology to Siebel that was released Thursday...." More (CBS5 05.02.2008).
Judge holds arraignment of 'big' defendant in court parking lot. "It was a beautiful day for drive-through justice Thursday at the Suffolk County courthouse. Under a cloudless sky, the court stenographer sat in a padded office chair. The defendant, Bernard Musumeci, 44, sat in the passenger seat of his gray Ford F-350 truck, the window down. And the judge, wearing no jacket over his black robe, marked the 11 a.m. court appearance amid a backdrop of pine trees. 'The record should reflect that this arraignment is taking place in the parking lot of the courthouse,' said state Supreme Court Justice Robert W. Doyle, adding, 'because of the severe weight problem this defendant has.'" More (Newsday 05.02.2008). Comment. The defendant is 6'1" tall, weighs 500 lbs, and suffers from osteoarthritis. The judge said the defendant would have to show further proof of his inability to enter the courthouse before any trial, because "obviously" the judge couldn't hold a trial in the parking lot.
The judge and his bro-at-law. "A Luzerne County judge's brother-in-law has been paid $877,880 to provide psychological services to the court system since 2004, raising questions about why that work isn't publicly advertised. The psychologist, Frank Vita, is married to the sister of Mike Conahan, who is now a senior judge in the county Court of Common Pleas." The county board has a policy requiring advertising for bids in such matters but the state doesn't. The president judge said he wasn't aware of the county board's policy and that the county board can't dictate in a judicial matter but nonetheless the court will advertise in the future. More (Wilkes-Barre Times-Leader 05.02.2008).
Another judge resigns in settlement of ethics charges. "Judge Berrien L. Sutton is resigning as both a Clinch County State Court judge and the Alapaha Judicial Circuit's juvenile court judge in exchange for the dismissal of state misconduct charges against him..Among the charges, Sutton was accused of appointing nonlawyers to preside over criminal cases; of signing an illegal order to collect court fees later distributed to Clinch County officials; and of pressuring a magistrate to help a business associate...." More (FLA Times-Union 05.02.2008).
The judge's toy 'powerball' machine. "District Court Judge Jackie Glass decided long ago to do everything possible to ensure that all jurors pay attention in her courtroom, so she doesn't designate alternates until just before jury deliberations. That's when she whips out one of her toy bingo-ball machines, as she calls them. It's a hand-held globe in which tiny balls with numbers are scrambled before one is dropped at random, similar to the Powerball system. Whichever juror's number drops makes him the alternate...." More (Las Vegas Sun 05.02.2008).
No better place for God than courts? "Dozens of county residents and local Christian leaders lined the steps of the Schuylkill County Courthouse on Thursday offering thanks, prayers and songs in honor of the 2008 National Day of Prayer. Five-time program coordinator Pastor Harold E. Alexander of the Church of Broken Pieces, Minersville, said there is no better place for God than inside the courts -- a place for judgment and wisdom. 'Our nation was formulated on prayer, so we have to continue to carry it on,' he said after the event...." More (Pottsville Republican-Herald 05.02.2008). Comment. Pottsville, renamed Gibbsville, is the fictional setting of many stories by the late novelist John O'Hara. The stories are collected in a hefty trade paperback titled Gibbsville, PA (1992). Coincidentally, I've been reading it off and on, and am down to the last story.
Court worker alleges court worker raped her in chief judge's chambers. "In a case that is causing distress within the judicial service, a mid-level officer is being accused of raping a married woman and making her pregnant...[P]olice have charged Mr Henry Haduli, an assistant registrar attached to the Commercial Court in Kampala, [Uganda,] with rape, following a complaint by an office attendant (names withheld) attached to the office of the Chief Justice at the High Court premises in Kampala. At the time of the alleged rape, on August 23, 2007, Mr Haduli was Chief Justice Benjamin Odoki's personal assistant. The alleged rape was committed in the office of the Chief Justice, sources say...." More (Daily Monitor via AllAfrica 05.01.2008). Comment. As always, we caution that an allegation is just that, an allegation, not proof.
Judge's wife pleads not guilty to arson indictment. "The wife of a state judge charged in connection to a fire that destroyed their northwest Harris County home last summer posted bond after turning herself into police. Francesca Medina, wife of Texas Supreme Court Judge David Medina, posted a $20,000 bond after she was re-indicted Wednesday on three charges, including felony arson and criminal mischief. Medina, and David Medina, were indicted in January in connection to the same fire, but charges against them were dropped the following day. More (MyFoxHouston 05.01.2008). Earlier. SCOTX justice and wife are indicted in arson fire (with links to updates).
The greatest courthouse employee ever? "My fellow citizens of Wayne County, thank you. You have entrusted me with a sacred duty -- the most-honored position of surveyor for the entire county of Wayne, which includes the cities of Portage, Clara, Allerton, and Dixon, as well as many, many townships. As reelection approaches, let me once again assure you that I will never allow this awesome responsibility to affect my humility or in any way impair my service to you. Not even if I go down in the history books as one of the greatest, longest-serving, and most beloved county surveyors in Maryland history...." Robert Pelaski, Wayne County Surveyor, Wayne County, MD, I Won't Ever Let The Position Of County Surveyor Go To My Head (The Onion 04.30.2008).
When protocol trumps common sense. You should never be surprised when bureaucrats establish a protocol, then say they can't deviate from it even if it's obvious that following the protocol in a particular case not only makes no sense but could create lasting harm. Case in point? This one out of Detroit, involving -- you guessed it -- child protective services' making a mountain out of a molehill and -- common sense and reason be damned -- snatching a 7-year-old kid from his perfectly-fine family for several days. Why? Protocol. And, sadly, judicial deference to nonsensical abuse of agency discretion. Brian Dickerson, Hard lemonade, hard price - Dad's oversight at Tigers game lands son in foster care (Detroit Free Press 04.28.2008).
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.