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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 has devoted his entire professional career to the public interest. 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 public interest political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.
Quote-of-the-Day - on the fallacy of judges as umpires. "There's a nice, popular conception that judges are just umpires calling balls and strikes, and that they just have to mechanically apply the rules...That's a nice thing to sell, but it's just not well-founded. There's a lot of ambiguity that has to be resolved somewhere. Judges have to make judgment calls. My theory tries to acknowledge that, but also to be a theory that can constrain judges when they interpret, and constrain them in a good way to further the political preferences of all of us collectively. My theory is, we can acknowledge the fact that legal materials often don't resolve the meaning of statutes but also let judges act as honest agents for us all." -- Harvard Law School Professor Einer Elhauge, author of a new book, Statutory Default Rules: How to Interpret Unclear Legislation (Harvard University Press, 2008), quoted in Elaine McArdle, Filling in the Gaps - From Einer Elhauge, a new approach to interpreting unclear legislation (Harvard Law Bulletin, Summer 2008). Further reading. a) Posner says judicial thinking ain't like umpiring; b) Imagining football -- or Department of the utter coincidence of great minds thinking alike; c) Profile of a 'judge' at work - after 35 years doing it; d) John Roberts' comparison of judges to umpires; e) Another Thomas to be judge.
Annals of rockin' judicial citations. "The last chief justice liked light opera. The new one cites Bob Dylan...Alex B. Long, a law professor at the University of Tennessee and perhaps the nation's leading authority on the citation of popular music in judicial opinions, said this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision. 'It's a landmark opinion,' Professor Long said...." Adam Liptak, The Chief Justice, Dylan and the Disappearing Double Negative (N.Y. Times 06.29.2008). Further reading. Alex B. Long, [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing, 64 Wash. & Lee L. Rev. 531 (2007). Want movie titles in your judge's opinion? See, United States v. Syufy Enterprises, 903 F.2d 659 (9 Cir. 1990), an opinion by Judge Kozinski in a civil antit-trust action by the Government against an operator of a chain of movie theaters in Las Vegas. Judge K, a movie buff, hid the titles of 215 movies in the text of the opinion (the titles are highlighted in the linked opinion). How about a Lewis Carroll poem? Parhat v. Gates, No. 06-1397 (D.C. Cir. 06.20.2007) (Gitmo tribunal's decision that Parhat is "enemy combatant" is invalid):
[T]he government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has 'said it thrice' does not make an allegation true. See Lewis Carroll, The Hunting of the Snark 3 (1876) ('I have said it thrice: What I tell you three times is true.'). In fact, we have no basis for concluding that there are independent sources for the documents' thrice-made assertions....
Annals of legal advertising. Prof. Mike Hoeflich of the University of Kansas Law School has a relatively new blawg called The Legal Antiquarian. A recent posting contains an image of this advertisement by two Indianapolis lawyers from 1822:
LAW FOR SALE. C. Fletcher & J.A. Breckenridge. AS Attorneys and Counsellors at Law, will perform any business in their profession, even that which comes under the denomination of pettifogging, if they are roundly paid for it, in any court in the fifth judicial circuit. They are not desirous of having any professional calls, unless well compensated therefor....
Annals of judicial 'advertising.' "Taliban in the Federally Administered Tribal Areas (FATA) and several settled areas of the NWFP have setup illegal Qazi (Islamic) courts, and are asking locals to bring their cases and complaints in these courts rather than before the country's courts...." More (Daily Times - Pakistan 06.29.2008). The Taliban's "advertisement" (that is, spokesperson) promises "quick and inexpensive justice" to the tribesmen.
Where the judge is only six years old. "Kidzania opened in Tokyo's docklands in 2006. It is a vast indoor town, with fake sky, streets and buildings housing 70 different shops, restaurants and businesses -- from pizza parlours and police stations to a petrol station; there's even part of a 737 for budding cabin crew to patrol -- all two-thirds scale and staffed by the thousands of children aged two to 15 who visit each day. The idea is that children will experience the world of work via role play with 'Zupervisors' -- learning lessons about responsibility, decision-making and team-work...." Kidzania, in short, is a theme-ark where kids can try out jobs. More (UK Independent 06.29.2008). Comment. The author's kids cited the park as the highlight of their two-month family visit to Japan. Here is a link to Wikipedia's entry. I like the idea. The only state bar convention event I ever attended was a luncheon in June of 1973, when Oscar R. Knutson was the chief justice (and he was as good as they come). I attended the luncheon in the downtown Radisson Hotel because the bar was presenting its annual "Service to Freedom Award" to the administration, faculty and students of the elementary school in my hometown for an innovative career program for 4th, 5th and 6th grade students that my late mother developed and coordinated, a program that brought people from all walks of life in the community -- including the usual suspects, bankers, doctors, lawyers and judges -- to school throughout the year to explain their jobs. (Bench and Bar, vol. 30, #1, July 1973.) One of the kids who benefited from that career program and from sessions Mom taught with some gifted students is now a host of a popular interview show on a metropolitan TV out west. She wrote to me awhile back:
Your mom was very special to me. In fact, she was probably one of the reasons why I wound up in this business. She worked with a group of gifted students when I was in the 5th and 6th grades. She had me writing letters to Presidents and First Ladies, noted authors, musicians, movie stars, sports figures and even a P.O.W. who I got to meet personally. I fell in love with news and current events and my letters and questions in those letters were like mini interviews. I've been asked numerous times when I speak to groups, if I had a favorite teacher or someone who made an impact on me growing up, and I've always said it was your mom. She was a precious lady.
Kids can be motivated to learn. And one doesn't have to be a trained teacher to help motivate them to learn. Even profitable ventures like Kidzania can play a role. Further reading. For one of my educational ideas that would not only help relieve the burden on our courts but help in the education of law students as well as those in other fields, all on the same dime, see, BurtLaw's Modest Proposal.
Judge in India demands removal of pics of colonial-era Brit judges. "[V. P. Patila,] a former judge[,] has demanded that photographs of former British judges be removed from the halls of Bombay High Court and the Espalande Court...." More (The Hindu 06.29.2008). Comment. I always get a chuckle when someone "demands" something like this. C'mon, guys, you've had your independence for around 60 years. It's time to recognize the Brit influence wasn't all bad. India got its common law system from the Brits and it's that system, which is one of the cornerstones of capitalism, that is helping India finally get its act together after years of muddling around. So my advice: don't let those pics bother you. It never bothered me that the hallowed halls and classrooms of my alma mater, Harvard Law School, is filled with portraits of eminent Brit judges, many of whom I doubt I'd have admired if I'd known them. See, Harvard Law School Online Legal Portraits Collection.
Did gardener poison judge's plants? "Sir Richard Tucker, for years one of the country's most senior judges, is heading for court in a row with his former gardener over poisoned plants...Police charged his former gardener with causing £500 worth of criminal damage to the garden, with the case set for full trial in August. The case has divided opinion in the picturesque village of Stanton, Gloucestershire...." More (UK Telegraph 06.29.2008). Comment. Sounds like one could "rip" an episode of Rosemary and Thyme from the bare events and allegations of this nonhomicidal dispute, adding a bit of imaginative fictional homicide to the brew to make it suitable for mystery-hungry PBS viewers. In case you haven't watched it, Rosemary and Thyme is an atmospheric British mystery series that follows two green-thumbed sleuths on their forays into the crime-infested gardens and estates that litter the British countryside.
Should MN go the way of 'The Ozark State'? Voters in MN and other states with judicial elections are being "courted" in similar ways by members of the power elite in well-financed campaigns to give up their distinctly-American role in selection of judges in exchange for the fake one-candidate "retention elections" promised by "the Missouri Plan." 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.
The judge who disrobed in open court. "The old woman said she was capable of proving [she was a witch]. 'I can turn myself into a vulture right now to prove I'm a witch'...'Ladies and gentlemen, [the judge] said, 'we...shall allow this woman to prove that she indeed is a witch by transforming into a vulture. So Madam, over to you'...Then said the woman, 'I can change myself into a vulture only if this judge can strip himself, because I can only change in front of a naked person'...[T]he judge said he was up to it, just to prove that the woman could not do as she claimed. He began peeling off his huge robe and vest and...." Well, you don't think I'm going to reveal all, do you? You'll have to go to this link to get the full story: Ghana News: The naked judge in a courtroom drama (MyJoyOnline 06.28.2008). Further reading. Further reading on Ghana's judiciary: Ghana's CJ calls for confidence in judicial system (MyJoyOnline 06.27.2008).
Judge is censured for losing her cool in court. "The Kansas Supreme Court this morning publicly censured Sedgwick County District Judge Rebecca Pilshaw...[for] losing her temper at prospective jurors during a murder trial in 2004...Pilshaw had received two other disciplinary actions from the commission in the spring of 2007 for inappropriately meeting with a witness outside of court and following improper procedures in hearing a defendant's motion...." Details (Wichita Eagle 06.27.2008).
Feds allege judge traded favors for legal help. "Federal prosecutors say a Clinch County [GA] judge secured a judgeship for his former law partner and courthouse jobs for the partner's wife in exchange for legal services. They say the couple did little or no work, but together earned more than $500,000 in the positions...." The allegations, against Brooks E. Blitch III, who resigned his state judgeship to settle misconduct charges, are made in documents asking a federal court to begin forefeiture proceedings against the former law partner, Berrien Sutton, who also resigned his state judgeship to settle misconduct charges. Neither Blitch nor Sutton nor Sutton's wife has been charged with any crime. Details (News4Jax 06.28.2008).
A word to new judges: judiciary is not land of milk and honey. "Principal Judge, James Ogoola told the newly-appointed judges: 'Don't think that you have come to the land of milk and honey. You have come to the land of huge responsibility, which you must fulfill at all times by dispensing justice to all manner of people without fear or favour.'" More (New Vision - Uganda via All Africa 06.27.2008). Comment. Just the other day, a judge said to me, "Boy, was I a fool! I thought when I entered the courthouse for the first time as a new judge, that I had come to the land of milk and honey."
Federal court slams judge over conduct as head of public inquiry into scandal. "Jean Chrétien claimed vindication yesterday as the Federal Court quashed the Gomery inquiry's conclusions that the former prime minister and his top aide bore responsibility for the sponsorship scandal...." Retired Judge John Gomery's "chief sin, according to [the court], was a preoccupation with the media spotlight that led him to give interviews he should have eschewed, make comments that indicated he judged issues before all evidence was heard, exhibited bias against Mr. Chrétien, and trivialized the inquiry proceedings...." More (Globe and Mail 06.27.2008). See, also, James Cowan, Judge fell for 'spotlight' (National Post 06.27.2008). Comment. Back in 2005, in a posting about Judge Gomery's being named by Time Canada as "Person of the Year," I reminded reader's of the risks of judges lending their name to such commissions. See, my comments at Judge named newsmagazine's Person of the Year? Not only was Judge Gomery named "Person of the Year," but he became that rarest of things, a celebrity judge. Judge got fame, autograph requests, best seats, etc. for heading inquiry. Today's story reveals the risks judges take and the price they may have to pay when they take on nonjudicial or quasi-judicial tasks such as heading high-profile commissions and inquiry boards.
Judge is sanctioned for injudicious comments in custody cases. "Broome County Family Court Judge Spero Pines has been admonished by a state judicial watchdog agency for using what it called sarcastic, angry and scolding language to people involved in three different child-custody cases...." More (Birmingham AL Press and Sun Bulletin 06.27.2008).
Commission votes to remove judge over false expense-account claims. "[Orange County Superior Court Judge Kelly MacEachern] was ordered removed from office Thursday by state officials who said [she] filed false and misleading expense claims for a legal conference in San Diego and then lied when questioned about them...." Judge MacEachern plans to appeal, to the state supreme court, the 7-3 ruling by state commission on judicial performance. The dissenters favored censure, not removal. More (L.A. Times 06.27.2008). Comments. a) A wise man once told me that every man has a little larceny in his heart. It would be interesting to know the prevalence and extent of fudging on expense accounts by judges and other public officials. b) I think censure would have sent a sufficient message to other judges, if that's what the commission was trying to accomplish by its harsh punishment. But then I'm one of the few remaining saps who still believe in second chances and in all the good old but now out-of-favor New Testament "re-things" -- like redemption, rehabilitation, renewal, reunion, rebirth, re-creation, restitution, reform, etc. Further reading. For links to some of my many postings on judicial expense accounts, judicial junkets, etc., click here. For my views on punishment, see, Burton Hanson on Crime and Punishment, and comments accompanying Former judge to serve year under house arrest.
A prayer for hard-hearted judges. Here's a prayer for hard-hearted judges & lawyers & people -- for "the Scalia" in each of us. It's a common prayer I remember from my youth, based upon Ezekial:
Lord. Please take away my heart of stone and make it a heart like yours, a heart of flesh. Amen.
Another judge sues for defamation. "Tulsa County District Judge Jesse Harris is suing two women who are the complaining witnesses in the two-count indecent exposure charge against the judge...." More (Tulsa World 06.26.2008). Earlier. We filed this posting when the criminal charges were filed against Judge Harris: More charges of excessive judicial 'transparency' in OK.
Judge is charged with aiding offender to avoid arrest. "Aztec Municipal Judge Barbara Aldaz-Mills was charged with a misdemeanor crime in magistrate court Wednesday for allegedly alerting a defendant that a bail officer was en route to arrest him...." More (Farmington NM Daily Times 06.26.2008). Comment. We presume the judge is innocent.
Judge scolds company for discouraging jury service by employee. "Gildan Activewear made $250 million in sales in the last quarter of 2007 but it was unwilling to pay an employee her salary or benefits if she sat as a juror. Superior Court Justice Robert Wagner had harsh words for the Montreal-based T-shirt company...Gildan spokesperson Geneviève Gosselin said the warning to the woman was made in haste by the human resources department without consulting management...." More (Montreal Gazette 06.26.2008). Comment. The judge was right to scold the company. The scolding created bad "p.r." for the company. The company has apologized and is changing its policy.
Fed judge opts for transparency, sort of.... Federal Judge Neal B. Biggers Jr. is scheduled to sentence famed tort lawyer Dickie Scruggs on Friday 06.27.2008 for bribery. Many prominent people have written letters urging leniency. Story. The South Mississippi Sun-Herald sought access to the letters. Judge Biggers surprised the paper by granting access but refused to let the reporter, Anita Lee, make photocopies of them and refused to let the reporter connect to the internet within the courthouse. This meant that Lee had to sit in the glaring sun and type away on her laptop, under the watchful eyes of court security. The account by Ms. Lee (Sun-Herald 06.26.2008) does a good job of showing the absurd lengths out-of-touch judges sometimes go to in trying to limit, by ridiculous conditions, public access to that which ought to be transparent and easily accessible to the press and ordinary citizens (who, after all, "own" the courts). Further reading. a) Letters to judges. Those letters from prominent friends asking for leniency. b) Judicial transparency and accountability. See, my in-depth essay, Minnesota is again asked to let the sun shine in on courtrooms, trials.
A coup d' judiciaire masquerading as 'reform'? Whenever some group using the word "reform" as part of its name comes along, I immediately am skeptical and, as Justice Holmes counseled ("Think things, not words"), go behind the nice-sounding group name or commission title and find out for myself what the folks promoting change are really up to. I've been taking this approach in my extensive criticisms of the well-financed judicial selection "reform" proposals being promoted in MN by members of the political, judicial and legal elite. And I would urge the good people of Michigan to examine with a critical eye the under-the-radar petition campaign by some Democrats to get a proposed state constitutional amendment placed on the ballot this November, where it would require approval by (as in MN) only 50% of those voting. I haven't as yet been able to locate a copy of the 12-pages of proposed amendments but they're summarized in this piece in the Detroit Free Press (06.25.2008). The amendments would a) reduce the size of the senate from 38 to 28, the house from 110 to 82, the supreme court by two seats (to five from seven) and the court of appeals by seven seats (to 21 from 28), and increase the number of trial judges by ten; b) reduce by 25% the pay of the governor and legislators and by 15% the pay of judges; c) cut pension benefits for judges who remain on the job after the amendment takes effect; d) require financial disclosure by elected officials; e) establish a commission to redraw legislative districts; and f) prohibit lobbying by legislators for two years after they leave office. I don't purport to be qualified to comment authoritatively on Michigan matters, but an editorial the Detroit News today (06.26.2008) is characterizing the "reform" package as a "power grab" intended to yank control of the courts from judges appointed by Republicans and give the Democratic governor a chance to appoint a large number of judges. The paper, after explaining why the proposal is a power grab for control of the courts, says: "That the backers of the proposal are unwilling to come forward is an indication they don't want voters to know who they are. That should worry anyone asked to sign the petition. It is far too radical a rewrite of the state Constitution to be done in a ballot measure pushed by anonymous funders and masked in salary cutting language." My general take on drives to amend state constitutions: a) it's way too easy to amend state constitutions; b) those seeking change through amendments too often are allowed to hide behind vague, nice-sounding names like "reform" when what they're after is change that benefits themselves; c) many "good government" groups and newspaper publishers and editors too easily allow themselves to get suckered into supporting any proposed amendments that bear the name "reform"; d) supporters of "reform," while styling themselves as enemies of big money in politics, often are heavily funded by "big money" and employ the same cheap p.r. tactics and distortions and omissions and glittering generalities to get their amendments passed that they decry when used by political candidates. My general advice to voters on proposed amendments to state constitutions (call it BurtLaw Rule-of-Thumb #512): When in doubt or when you haven't studied all sides of the issues yourself and come to your own conclusions, vote "no" on any proposed amendments. Or, to put it differently, don't buy a pig in a poke as a substitute for the tried and true. Update. Opinion: Beware of those urging 'reform.' "Before you sign a petition to put something on the state ballot, you should read it first...And it's fair to ask that person whether they are getting paid to bother you or are volunteering, and if they know who is behind the petition campaign. If they tell you it's some group with a name like Reform Michigan Government Now, which sounds like something you want to do, it's still OK to ask who's bankrolling the effort, because, as you know, nothing in politics is ever too far from money...." More (Detroit Free Press - op/ed by Ron Dzwonkowski 06.29.2008).
Happy 150th to a beloved county courthouse. "Last summer while going to the Post Office, I happened upon Judge Dan Favreau trimming a tree. I commented that you would never see a judge in Columbus trimming a tree. Judge Favreau replied that you wouldn't see a judge in Columbus painting his own court room either, as the judge had done the week before. I think this illustrates the great love that Judge Favreau has for our wonderful, old courthouse with its classic Greek Revival architecture. The majority of citizens, such as myself, and our county officials share Judge Favreau's love for this grand old building, the most beautiful building on our Town Square. Whenever most of us think of McConnelsville, the courthouse is perhaps the very first image that comes to mind...." -- From a terrific piece on the county courthouse in McConnelsville County, Ohio, a courthouse that has been lovingly preserved and is now being celebrated on its 150th "birthday." More (Morgan County Herald 06.25.2008). Comment. Most counties in my experience wisely appreciate their historic courthouses and do what they can to preserve them. Not so the powers-that-be in Seneca County, also in Ohio, who seem intent on destroying their historic, one-of-a-kind 1884 courthouse. See, my essay on historic preservation, The failed campaign to save a historic courthouse. See, also, Last-ditch rally to try prevent destruction of historic Tiffin courthouse, and Courthouse Girls -- big hit at film festival.
Judge says armed force is needed to remove Zimbabwe's dictator. "A former Zimbabwean High Court judge says a United Nations armed force is the only option left to bring down Robert Mugabe and restore democratic rights in the troubled nation. Benjamin Paradza came to New Zealand as a refugee in 2006 after his judgments against the Zimbabwean Government made him marked for death. He now lives in Wellington...." More (NZ Herald 06.25.2008).
Did sheriff's office bug attorney-client conversations at courthouse? Some attorneys in a Georgia county believe so. See, Bug in the Courthouse (Metro Spirit 06.25.2008).
90 years old, he's still going strong. He was Greene County, Alabama's first black probate judge and, some say, the first black probate judge in the country. He also has a courthouse named after him -- the William McKinley Branch Courthouse in Eutaw, Alabama. Here's a link to Time Magazine's 02.01.1971 report on Judge Branch's election and assumption of office in 1971. Now he spends his time ministering to people, something he did, along with teaching, before he became a judge. More (Black Belt Gazatte 06.24.2008). Comment. Judge Branch owes his judgeship to a) the Civil Rights Revolution, b) the Voting Rights Act, c) the registration of black voters in largely-black Greene County, and d) a system that allowed the voters to play a role in the selection of judges. Interestingly, it was the people who selected the first, and so far only, black person to sit on MN's highest court. Some prominent judges pointed this out in a letter dated 03.28.2008 to the Minnesota Lawyer opposing the proposal to substitute Missouri's Plan, with its one-candidate "retention elections," for the populist Minnesota Way: "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). As an aside, it should be noted that, like Judge Page, Judge Aldrich, who has a serious hearing impairment, was elected to the bench after trying but failing to get appointed via the then governor's committee-aided appointment process.
Annals of cronyism: MN's Pawlenty appoints another colleague to bench. "Gov. Tim Pawlenty on Tuesday appointed three people to the Minnesota Court of Appeals, including one who was a colleague at his former Minneapolis law firm... Louise Dovre Bjorkman...." More (Star-Tribune 06.25.2008). Comments. a) Just recently the Guv determined that the "best person" to be the new chief justice was his old law firm partner, Eric Magnuson. See, Pawlenty picks pal as new chief justice. Now, after presumably scouring through scores of applications, he's again determined that the "best person" for a particular judicial vacancy -- this on the state intermediate appeals court -- is a former law partner. We assume that his "judging" of the judicial wannabe's in both instances was "blind judging" -- as in "blind taste testing" or "blind exam grading" -- and that he was surprised at the choices the self-imposed principles of merit selection mandated. We can hear him now expressing surprise: "I actually picked another friend?! Go figure!" b) It is true, as I've just shown, that favoritism or cronyism often is a factor in the governor's choice of judges in MN. But we have a check on that in Minnesota, since "the Minnesota Way" doesn't deprive voters of a role in judicial selection. Now members of the judicial elite in MN want to do away with that safeguard or check. Under the current Minnesota Plan, in practice most judges don't face opposition when their terms are up for extension. But if a lawyer believes a particular judge doesn't merit another term without facing opposition, the lawyer can challenge the judge, leaving it up to the voters to decide. This system, which is incredibly incumbent-friendly, doesn't satisfy some members of Minnesota's judicial elite. With well-financed outside assistance, they are once again trying to persuade voters to give up their historic role in judicial selection, something they've advocated or at least hoped for for as long as I've been a lawyer. What do they offer in exchange? They want us to adopt what's known as the Missouri Plan (or, as I sometimes call it, the "Ozark State Plan"). That plan mandates a so-called "merit selection panel" composed primarily of -- you guessed it -- members of the political and judicial-legal elite. The panel members screen out the hoi polloi among applicants and recommend a select few, and the governor then gets to chose one from the list. The voters' only "check" is an opportunity to vote yes or no in Soviet-style one-candidate "retention elections." If they don't like the guy, they can oust him, but -- surprise! -- the elite panel and the governor get to replace him. In other words, in an Ozarkian retention state it is possible for a cabal of politicians, ideologues, lawyers and other members of the power elite who are in control of the appointment machinery to keep on selecting clones of those judges who are not retained by the electorate. That is, the people can knock down an Energizer-brand bunny rabbit but the cabal can ensure the rabbit will be replaced by an identical Energizer-brand bunny rabbit. Not so under the current Minnesota Plan or Minnesota Way, with its system of true contested elections. If an appointee in Minnesota is or morphs into an Energizer-brand bunny rabbit, candidates of a different disposition can step forward and give the people a chance to not only remove the Energizer-brand bunny rabbit but also select a more-appropriate replacement. c) One of the beauties of our federal system is that the states -- those "laboratories of democracy" -- don't have to follow the federal government's approach or some other one-size-fits-all template in matters of judicial selection and tenure. This is good because what works in one state might not work in another. Thus, the MN Plan, with voters having a say in judicial selection, has worked very well in MN but might not work well in some other states. Similarly, the Missouri Plan -- which leaves no say for voters in judicial selection, giving them only a limited yes-no vote on whether to retain a judge -- was adopted as a then understandable response to the electoral shenanigans of that notorious political machinist, "Boss Tom" Pendergast. Unlike Missouri, Minnesota has no history of judicial corruption or influence peddling. Interestingly, as I'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 (which may be why more Missourians are clamoring to change it). d) Incidentally, there's nothing preventing the governor in MN from using transparent screening commissions in making state judicial appointments. In recent years, governors have been happy to use them. What the so-called Quie Plan to use retention elections says is that the members of the judicial elite don't trust voters to make a valid choice between an incumbent judge and a challenger. I find this insulting to the voters of Minnesota, who throughout our state's illustrious history have played such a responsible role in exercising the franchise. If you don't believe the members of the judicial elite don't trust Minnesota voters, read this revealing piece by Dan Pero at American Courthouse about Chief Justice Magnuson's recent insulting statements about the capacity of MN voters. See, also, my recent posting titled Why SCOMN's new chief should listen to SCOWIS's more experienced chief. Unlike the members of the judicial elite, I trust the voters and I believe that the ultimate appointing authority in states like Minnesota, with its astute electorate, ought to continue to reside with them.
On the rude again? Back in 2005 the judicial conduct folks in WA reprimanded "King County District Court Judge Judith R. Eiler [for] violat[ing] Canons 1, 2(A), 3(A)(1), 3(A)(3) and 3(A)(4) of the Code of Judicial Conduct by engaging in a pattern of rude, impatient and undignified treatment of self-represented litigants in the courtroom. This included inappropriately interrupting them, addressing them in an angry or condescending or demeaning tone of voice, and threatening to rule against them if they interrupted or annoyed her." Case Summary (02.04.2005). Now, in In Re Judith R. Eiler, the board has accused her of being "on the rude again" (my clever choice of words). Complaint (06.20.2008). News report: Issaquah judge charged with improper conduct (Issaquah Press 06.25.2008).
Latest on allegation presiding judge was lover of prosecutor in capital case. "It's not as though Judge Verla Sue Holland never recused herself from a case involving her alleged ex-lover, former Collin County District Attorney Tom O'Connell. She did at least one time while sitting on the Texas Court of Criminal Appeals, the state's highest court for criminal matters and the very court that is embroiled in the current controversy over the alleged relationship between the former judge and the former DA...." More (Houston Chronicle - Rick Casey's column 06.20.2008). Further reading. Annals of Judicial Romance: Lawyers for death-row inmate allege judge-prosecutor affair (with links to other postings on judicial romance).
Last-ditch rally to try prevent destruction of historic Tiffin courthouse. "Preservation Ohio, the Ohio Historical Society Preservation Office, the Midwest Office of the National Trust for Historic Preservation and Heritage Ohio are to present 'This Place Matters,' a rally on the 'importance of preserving the 1884 Courthouse,' 2:30 p.m. Sunday on the courthouse lawn...." The Courthouse Girls (whose "racy" calendar helped save the Randolph County Indiana courthouse) will make an appearance, and the prize-winning documentary about their efforts will be shown. More (Tiffin Advertiser-Tribune 06.20.2008). Related. Courthouse Girls -- big hit at film festival (with multiple links to relevant prior postings).
Those sticky elevators in new judicial center -- and the virtues of walking. "[F]or Manatee County officials, problems with malfunctioning elevators have been ongoing since the new judicial center opened last month...The Bradenton Fire Department has been called out twice a week for reports of a person trapped in one of the elevator cars. There are reports that at least one judge, and a clerk's office employee, have also been stuck...For those concerned about stalled elevators, the Judicial Center has a more conventional option for going up and down. At least once a day, County Judge Doug Henderson takes the stairs to his office. But, in his case, walking the hundreds of stairs is not from a fear of elevators. Henderson does it for the exercise." More (Sarasota Herald Tribune 04.20.2008). Comment. I like Judge Henderson's style. After law school, I worked a year for the judges of the Hennepin County District Court in the old courthouse in Mpls., and regularly walked the steps to my office in the law library. Then I worked as a trusted aide to the state supreme court (where in recent years I've happily made myself persona non grata) for nearly 30 years, starting in 1970. When the court's offices were in the great old capitol, I often climbed Cass Gilbert's famed cantilevered staircase to my south-facing third-floor office (321A) in the judicial or east wing of the building, always getting vertigo if I looked down over the railing. And once the court moved across the street to the new judicial center and my office, again south-facing, was on the fourth floor (430), I often trudged all the way up the stairs from the lower level of the two-story underground parking ramp when I got there at 6:30 a.m., my standard starting time. Why? Same reason I still walk each day as much as I can. See, my mini-essay (with links) at Fellow walks 25 miles to courthouse for DWI sentencing. Further reading on elevators. Nick Paumgarten, Up and Then Down - The lives of elevators (The New Yorker 04.21.2008).
Question for those who wannabe NYS's top judge: D'ya know what job pays? The New York Sun has a terrific editorial ('Poser for the Next Chief Judge,' 06.20.2008) suggesting that the 12 vetters of those who want to replace the retiring top judge, Judith Kaye, should make sure the finalists understand what the job pays -- this in reference to Chief Judge Kaye's "ceaseless clamoring for more money" and her suit o/b/o all the state's judges against the guv and the solons "to get a judge subordinate to her to order a raise." So there's no doubt, the applicants should be told: "What the job pays is $156,000 a year, and it comes with a number of other benefits, such as health insurance, a pension, a car and driver, and a hotel room in Albany when court is in session." The editorialist says "it may be" this disclosure will "scare away" all the worthy candidates. But "it may also be" that there are some qualified idealistic candidates who actually are willing to make the "sacrifices" that go with serving the public for only $156,000 a year + insurance, pension, car, driver, etc. Further reading. When judges sue over pay, they may have to defend themselves (which includes links to some of my earlier postings on judicial pay, including the ever-popular 'I could be making lots more if I were Michael Jordan...'
Latest on latest Hlophe controversy. "The country's top judges have thrown the book at controversial Cape Judge President John Hlophe, accusing him of actively lobbying at least two Constitutional Court justices in favour of a pro-Jacob Zuma ruling...In an explosive 21-page complaint signed by Chief Justice Pius Langa and endorsed by the 10 other justices of the highest court in the land, Judge Hlophe is alleged to have approached Justice Bess Nkabinde and Acting Justice Chris Jafta during March and April this year...." More (Independent - South Africa 06.19.2008). Full text of judges' complaint (PDF).
Judge is indicted on human trafficking charges. "A former Fulton County magistrate judge[, William Garrett Jr., 72], along with his son, a Forsyth County deputy, and his son's wife, have been indicted by a federal grand jury on human trafficking charges involving a nanny from India...." More (AJC 06.19.2008).
Why SCOMN's novice chief should listen to SCOWIS's more experienced chief. Headline in the Strib: "Eric Magnuson: 'Politics, judicial work don't mix.'" You have to love it. With a straight face, Governors typically say when they pick a pol pal for judicial office that he or she is "the best person" for the job. MN's highly-partisan Guv, Tim Pawlenty (who took his orders from Dick Cheney when he deferred to Stormin' Norm Coleman's Senate bid in 2002), said the same earlier this year when he picked his pal, Eric Magnuson, over more-qualified and far-more-experienced people, to be MN's latest chief justice (there've been a lot of 'em of late). See, Pawlenty fulfills Nostraburtus' prophecy and picks pal. Before he was appointed by Pawlenty, Magnuson apparently hadn't announced a position on the issue of whether the state constitution should be amended to deprive voters of their historic say in judicial selection. Playing it safe? We were pretty sure that once he had a seat to defend, he'd come out in favor of taking away the voters' role in selection, replacing it with the fake one-candidate style of retention election used in "The Ozark State," Missouri, which adopted it because of the political machinations of Tom Pendergast. And sure enough, he has: in somber tones and apparently with a straight face, he says that politics and judicial work "don't mix." More (Star-Tribune 06.18.2008). Pretty funny -- and totally predictable. Magnuson cites the recent supreme court election in Wisconsin. He says he's worried we might have a vigorously-contested one in Minnesota like the most recent one in Wisconsin, where (horror of horrors!) the voters elected a trial judge over a recently-appointed justice. Hey, if voters elect the challenger over one appointed by the governor, they must be misinformed, right? We note Magnuson doesn't mention the fact that Wisconsin's Chief doesn't see things his way. I refer to Wisconsin's Chief Justice, 74-year-old Shirley Abrahamson, who, unlike Magnuson, has some actual judicial experience: she's been on the court for 32 years, 12 as its chief justice Chief Justice Abrahamson has a higher impression of the wisdom of voters than do Magnuson and other members of the Minnesota judicial elite. As readers of The Daily Judge know, she recently announced that she will seek another term next year, that she expects and welcomes opposition, and that she relishes another battle for Truth, Justice, and the American Way (my words) and plans to "run hard" (her words). See, my detailed posting summarizing Abrahamson's views: SCOWIS' Chief leads the way -- herein of experienced judges, judicial elections and judicial independence. See, also, my detailed essay, with extensive links and updates, explaining why it'd be foolhardy to tamper with something that's served MN democracy well for so many years (our judiciary is in the top five, Missouri's is in the bottom five). Update. In a terrific piece at American Courthouse, Dan Pero, a supporter of the tried-and-true Minnesota Way over what I'm calling "the Ozark State Plan," damns Magnuson's elitist remarks with sarcastic praise for his "honesty" in actually saying what so many in MN's judicial elite really think, that he doesn't think MN voters are competent to have a say in judicial selection through real elections (as opposed to the fake one-candidate Ozark State retention elections). Says Pero:
As Chief Justice Magnuson no doubt knows, literacy tests for voting were outlawed with the Voting Rights Act of 1965, legislation later upheld by the U.S. Supreme Court. But maybe Minnesota could pass a law forbidding any citizen without a college degree from voting in a judicial election. Or maybe they could restrict voting to only those with a J.D. Come to think of it, most people don't know much about their school board elections either. So maybe only teachers should be allowed to vote in these races. And my guess is about half of all Americans voting in any given presidential election think the other half just 'walk into a voting booth with no idea what they're doing.'
Commissioners to judges: ya gotta generate more income. "Dallas County commissioners are asking county criminal court judges to generate more revenue from their courts or possibly lose funding for some key programs such as the drug court, jail education and services for the homeless and mentally ill...Judges have discretion over how much in fines to assess. They also can decide whether defendants pay their fines and fees in cash or satisfy the fines through community service or a jail stay. Some of the judges have generated more money from fines and fees than others...." More (Dallas Morning News 06.18.2008). Comment. If true, this sorta makes judges seem like traffic cops who are expected to generate municipal revenue by meeting a daily quota in issuing speeding tickets.
Courthouse Girls -- big hit at film festival. "Last weekend the Courthouse Girls of Farmland was the top audience pick among 64 entries at the 28th annual Breckenridge Festival of Film. The locally produced documentary is about more than seven card-playing ladies who in 2005 took a stand against the then-proposed demolition of the Randolph County Courthouse. The ladies shimmied out of their clothes and posed for a bare-skin calendar as a way to raise awareness, and money, for the fight to save the courthouse, one of the county's oldest structures...." More (Muncie Star Press 06.16.2008). Earlier postings. Commissioners rescind decision to tear down courthouse; Grandmas' nude-calendar fundraiser for save-the-courthouse protest; Older women to pose nude to try save courthouse. Comments. a) A cautionary note: Once women get into porn -- even the soft kind -- there's no telling when they'll stop, if ever. The courthouse ladies, it appears, are still "at it." They created another calendar "to raise money to help replace the courthouse's mansard roof and clock tower, which were removed in the 1950s." And now they're "film stars" -- of the, er, mature adult kind? b) Seriously, they deserve great credit for helping save the courthouse, and the commissioners deserve credit for rescinding their decision. We wish the commissioners in Seneca County in Ohio who voted to destroy their historic courthouse would rescind their decision. See, my extended essay on historic preservation, including of courthouses, at The failed campaign to save a historic courthouse from demolition. It's my guess and hope that posterity will not look kindly on their decision to demolish it.
Saving old courthouses for other uses. "Walking through the doors of the old courthouse in downtown Crown Point is like walking back in time. Located on the building's lower level are shops of every variety, from a candy store to a clock store. Barb Bonick, owner of Geppetto's Children's Apparel & Toys, has been located at the courthouse for 23 years. 'It's a great location,' she said. 'I love the building and that it is the center of town. From the very beginning, the town's people wanted the shops to succeed in the courthouse. They are so loyal and dedicated to supporting the businesses down here. It's great.' Visitors rarely go to only one store. Typically, they visit all the shops and may even have lunch...." More (Gary Post-Tribune 06.16.2008). Comment. As our readers know, from time to time I post links to stories like these because they illustrate the multiple uses to which "saved" courthouses may be put.
A judge's father helped make her who she is. "He is Jim Bransford or just Mr. B. She is Hennepin County District Judge Tanya Bransford. They are father and daughter, respected figures in Twin Cities justice circles. They share a commitment to the troubled children and adults who land in court and trouble. Their own lives have made them experts in family crises. During her father's drinking days, Tanya Bransford remembers having to push aside his plate of spaghetti at the dinner table so he wouldn't pass out in it...But she also remembers an involved and loving father who helped make her the judge she is today...." -- From an interesting profile, which should be read in its entirety, of a Mpls. father and his kids. More (Star-Tribune 06.15.2008).
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.