BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great legal importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."
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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He 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.
Some of our recent postings. a) How do you stand on gun control? b) Halloween scares: Bollywood stars masquerading as judges, judges who dream of being rock stars. c) Board blasts judge in 225-page ethics opinion. d) Judge Kent wants favorable polygraph results admitted at his trial. e) A top Lebanese judge resigns in protest. f) Judge Einfeld finally admits he lied to beat speed-cam speeding ticket. g) Top judge says top judges aren't crooked. h) Will Ghana become a center of judicial excellence? i) Judge 'Ace' Henderson is cleared to return to work, will seek huge damages from police. j) Complaints against Chief Judge Nottingham are dismissed now that he's resigned. k) Should supreme court be chosen by lottery? l) Those 'unbiased' judicial ratings by the 'experts,' the bar associations. m) Judges may get big pay increase based on outdated rosy economic forecast. n) 'Sober as a judge, after five Brobdingnagian years.' o) Judge is charged with misconduct. p) SCOMN justice, facing opposition, touts endorsements, responses to poll of lawyers. q) Is judge's legacy at stake as result of DWI arrest? r) Yet another judge is scolded for rudeness in court. s) Family court judge is removed from bench. t) SCOPA justice says sorry if anyone offended by anti-Obama e-mail she sent to Jews. u) Judge as 'goodwill ambassador,' or why Justice Holmes must be chuckling in his grave. v) Annals of cheap political arguments about judicial appointments. w) Restoring historic courthouse as a response to economic crisis? x) Embattled Vegas judge's hubby takes plea deal, will serve time in state pen. y) Judge running for city attorney tells opponent his notion of judge as tennis referee is absurd. z) Clerk of Court Laura Brent's battle with the judges. aa) Omitting judicial contest from ballot in MN -- wishful thinking? bb) Kathleen Parker on why McCain picked Palin. cc) A brave judge ruffles some feathers with his views on pro bono work. dd) William James on good citizenship. ee) Justice Thomas extols listening (during oral argument) as judicial virtue. ff) Oops! Judge didn't know she shouldn't contribute to candidates. gg) Female judge says in-laws are harassing her with dowry claims. hh) A bench for Judge Hollywood at the dog park. ii) Annals of court-appointed special(ly biased) panels. jj) Rehnquist papers are donated to the (Herbert) Hoover Archives. kk) Judge running for SCOMN gets her campaign in hot water. ll) Judge pleads no contest, resigns. mm) Law prof's advice on voting in judicial elections. nn) More on Michigan's troubled supreme court. oo) SCOMICH gets choice: overrule jud. conduct bd. or overrule the voters. pp) Harris Poll results suggest voters overwhelmingly want state judges elected. qq) Board says judge offered leniency for sexual favors, urges removal. rr) Sir Mark Potter urges end to 'secret justice.' ss) In this court, if you win you get the death penalty. tt) Judges, too, 'pay a price' in foreclosure court. uu) Does judge need to have 'been there and done that'? vv) Retired judge's home is invaded and looted, servant is attacked. ww) Headline-of-the-day. xx) A 'mum's fury' at judge. yy) Annals of allegedly assaultive judges. zz) Annals of judicial perks -- 14 months of paid leave. aaa) The stones of the gods grind slowly. bbb) The pension game some judges are playing in WVA. ccc) Ex-migrant worker runs for SCOTX. ccc) Anals of homeless judges. ddd) The KKK rally at the courthouse in Donalsonville, GA. eee) Judge tells defendant he's 'beyond redemption.' fff) Will judge's firing court administrator for DWI arrests 'restore faith in judicial system'? ggg) Judge as crusader/investigator. hhh) The summons to jury duty apparently upset this woman. iii) No, says C.J., he isn't trying to stop colleague from filing dissenting opinion. jjj) Failing economy finally hits courthouse crowd: nearby Starbucks is closed! kkk) Judge is reprimanded for referring to three female muggers as 'over-the-hill slappers.' lll) Judge who apparently was ousted by voters is sued by ex-girlfriend. mmm) Annals of foolproof scientific evidence. nnn) Quotes-of-the-day (2 for the price of 1!). ooo) Annals of extra judicial perks (the best perks often are the extra ones). ppp) Is the 'judicial pillar' crumbling? qqq) CJI wants to 'weed out' bad judges. rrr) Budget woes prompt SCOMASS Chief to say no to judicial junkets! sss) Courthouse regulars are stunned by sudden death of 45-year-old judge. ttt) An interesting image: 'Lords leap to defend judges.' uuu) Witness in judge's DWI trial says prosecutor told her to lie. vvv) 'Racial spat' among judges is cleared up -- just in time. www) Judges to receive whopping 50% pay raise! xxx) Judge is arrested after bar fight. yyy) Two can play the 'reform' game. zzz) A judicial mind at work: 'hair judge' knows 'it' when she sees it. aaaa) Some everyday examples of the 'knowing it when I see it' style of judging.
How do you stand on gun control? Just for the heck of it, here's a Halloween posting from the personal campaign blog I maintained during my standing for statewide judicial office in 2000:
10.09.2000. I am asked questions -- e.g., this one recently: how do I stand on gun control -- pro or con? My basic answer to this type of question: I'm not running for the legislature and I don't pre-judge cases that might come before the court if I'm elected, including cases requiring interpretation and application of a statute or a determination of a statute's constitutionality. "It's October," a different voice asks, "if you can't tell us about that, at least tell us how you stand on pumpkins." Answer: one doesn't stand on a pumpkin. But, as Thoreau suggested, one can sit on one, and a pumpkin of one's own is better to sit on than a velvet cushion crowded with others. My motto is: "Every kid should have a pumpkin to sit on, just as mine did not so long ago."
Halloween scares: Bollywood stars masquerading as judges, judges who dream of being rock stars. "[Judge] Karisma [Kapoor]...just doesn't believe in giving good marks on the best performances but applauds them by getting up and clapping 3 times if she likes their performances. This is completely unlike Saroj Khan who used to give Rs. 100 and use to whistle for the best performance. Karisma has her own andaaz. When Karisma did this for the first time people were shocked and thought as if there was a fire on her seat. But she got up and said that the jodi deserved to be applauded with three claps, for their marvelous performance...." More (One India 10.31.2008). Earlier. Judge Karisma Kapoor insists she'll be honest, fair (The Daily Judge 10.10.2008). Comment. We like Judge Kapoor's "judicial style." We've found that judges either have an authentic style or they don't. Some judges, for example, are scholars at heart. Chief Justice Hughes apparently was one. (Justice Felix Frankfurter said Hughes "could tear the covers off of books." About Hughes "FF" was speaking metaphorically. About other judges, those lacking in judicial temperament, he'd have been speaking literally.) Judges like Hughes seem to know they're good at being scholars and they're wise to stick to it. As a famous strip=tease artist maybe said, "You gotta go with what you have" -- or was it "Ya gotta show yer stuff -- just not all of it"? But, to paraphrase the great advocate of grand judicial mediocrity, Sen. Roman Hruska, not all judges can be Holmeses or Brandeises or Frankfurters. See, If you were a Senator & you could ask Judge Roberts just one question... (The Daily Judge 07.21.2005). To state it differently, some judges -- and we're speaking hypothetically and without any particular judges in mind -- aren't so good at the scholar bit, even though, God knows, they give it the old college try. Some of these types have the proverbial "ants in their pants" (an expression from my youth) and, like rambunctious boys in "kindygarden," literally need to run around "like chickens with their heads cut off" (another old expression). These days judges like that, God bless them (to quote Joe Biden), are able to channel their "inner kindygardener" because of the emerging acceptance of what I've called "the judicial 'p.r' revolution." That's the revolution that has taken the form of judicial outreach programs, public book readings by judges, countless speeches by individual judges, court 'p.r.' specialists, outstate "tours" by judges, holding court in public arenas, etc. As a result, we're witnessing an explosive public interest in judges as, you might say, the local celebrity equivalent of rock stars! Moreover, as people like Karisma Kapoor bring their show biz ways to judging, judges now are free to bring their judicial ways to show biz. Cross-pollination? You might say so, if you want. All to the good? You might say so....
Board blasts judge in 225-page ethics opinion. "The Pennsylvania Court of Judicial Discipline, in a blistering 225-page ruling [written by Philadelphia attorney Richard A. Sprague], concluded that [Luzerne County Common Pleas Judge Ann H. Lokuta] violated ethics rules, failed to perform her duties, terrorized courthouse personnel and made her staff run her personal errands.
The findings...portray her as an imperious and temperamental jurist, and accuse [her] and her tipstaff of lying under oath...She faces the possibility of removal from the bench where she has served since 1992. At one point, the opinion simply listed of dozens of adjectives that witnesses used to describe Lokuta's erratic behavior as a judge, including 'venom,' 'diabolical,' 'condescending,' 'vindictive,' 'brutal,' 'cruel' and 'nasty.'" More (Evening Sun 10.31.2008). BTW, the judge vows to fight the board's findings and recommendations. In other words, she will not "go gentle into that good night" of judicial ignominy. Text of board's opinion. Earlier. Links to four of our earlier postings re Judge Lokuta. Comments. a) The board found, inter alia, that Judge Lokuta "used her law clerk for shopping, yard work and 'cleaning, organizing, wrapping and packaging antiques and collectibles.'" In "the good old days," no one thought there was anything wrong when a judge did this. Justice Holmes, who is one of my heroes, used his law clerks (they were called "secretaries" then and, like so many SCOTUS law clerks today, top Harvard Law grads) to assist him with all sorts of personal chores, including reading risque French novels to him, tending to his personal correspondence, maintaining his checkbook, accompanying him on his annual visits to scenes of his Civil War "heroics" (getting shot three times), etc. I have it on good authority that it was not unheard of for an occasional state supreme court justice to do this as late as the 1970's. But times have changed and judges ought to know that they just can't use law clerks ths way anymore. b) Did I read that correctly -- 225 pages!? I tried to download the PDF file but with my slow dial-up connection it was taking too long so I aborted the process. I therefore don't know how much of the opinion is "filler" in appendices, etc. If the decision is that long, then it's way too long. Frankly, in my 28+ years as a legal writer/researcher at SCOMN, I don't believe I ever encountered a matter that required my writing anything over 25 pages; typically, my memoranda averaged about ten pages. BTW, most opinions of appellate judges in this country are way too long, sometimes because i) they tend to hire clerks who picked up bad habits writing for law school law reviews and ii) they rely on these long-winded novices, who tend to write 20-page law-review-style memoranda when ten pages would be better, to write opinions. Writing longer is generally easier than writing shorter, except that the master of the short opinion (the master of us all), Holmes, made writing them seem easy: he wrote his quickly, typically right after conference, and without significant help from his clerks. His clerks, some of whom were my law school profs at HLS, were an exceptional lot, but, as I've said, he used them primarily as legal valets, never as ghostwriters. Some of the best opinion writers in Minnesota tend to be judges on the so-called intermediate court of appeals, a high-volume appellate court. A couple judges on that court whose opinions I admired when I was reading them were Judge Harriet Lansing and Judge Marianne Short (now in private practice), but there were others. I won't comment on current or past Minnesota Supreme Court Justices other than to say that Justice John Simonett, now retired from the court, in my opinion is one of the best writers ever to serve on the court. Here's what I wrote about him several years ago:
Gentleman John. "It is not often that someone comes along who is a true friend and a good writer." Charlotte's Web by E.B. White (1899-1985). I had lunch the other day with my long-time loyal friend, Justice John Simonett, now retired from the bench but, thankfully, not from legal practice. Justice Simonett, who would be one of my personal picks if I were to assemble an all-time "dream" Minnesota Supreme Court (or any other supreme court, for that matter), was, inter alia, a master of the short, elegant opinion. One of the best "short, elegant opinions" ever written by any member of any court was one he "ghost-wrote" for that famed Swedish jurist, Per Curiam. I suppose I would be breaching an ethical rule if I revealed the name of the opinion, so you'll have to take my word on it. My first mentor in the law, the late Justice C. Donald Peterson, another of my dream picks, wrote of Justice Simonett that he "is thoughtful and unfailingly courteous in court conferences... [h]ighly literate and the court's most graceful writer." The Professional, Public and Judicial Career of C. Donald Peterson 163 (1987). Well said...and true. A naturally witty man, Justice Simonett kept his wit (but not his wisdom) out of his opinions and instead found (and continues to find) a public outlet for it in speeches and short pieces published in bar magazines, etc. In 1998 I compiled many of his witty (and wise) observations in a well-received piece I called "Quotations of Chairman John on Law, Life, and Other Things That Matter (Such as Fishing and Pulltabs)," which was included in a volume on his judicial career published in 1998 by the Minnesota State Law Library as part (No. 11) of its Minnesota Justice Series. I wish I could provide a hyperlink to the piece, but, alas, it is not available online or widely available even offline. (If his law firm was smart, it'd publish it on its website.) One of his more recent speeches is available online and it wouldn't hurt if every member of our troubled profession were to read it. I refer to Civility and 'Generalized Reciprocity' (Bench & Bar Feb. 2003).
Judge Kent wants favorable polygraph results admitted at his trial. "[Samuel Kent, the] federal judge indicted on charges alleging he fondled a former court case manager wants two lie detector tests that he passed admitted into evidence at his January trial...." More (Houston Chronicle 10.31.2008). Earlier. Federal judge is indicted; will fight charges (The Daily Judge 08.29.2008) (contains links to earlier postings).
A top Lebanese judge resigns in protest. "Ralph Riachi, one of the most respected judges in Lebanon, has resigned from the supreme judicial council in protest against the delay to appoint 100 judges who have been waiting for two years to fill vacant posts, local Daily Star reported Friday. 'In two years we have not nominated any new judges, last Monday I told them I would resign if we fail to nominate the judges at this meeting,' Riachi told the Daily Star...." More (China View 10.31.2008). Comment. Apparently a quorum didn't show up for the meeting, so he carried out his threat. Good for him. We sorta inclined to like anyone who resigns over some principle.
Judge Einfeld finally admits he lied to beat speed-cam speeding ticket. "Former Federal Court judge Marcus Einfeld has finally admitted he lied when he claimed the driver of his speeding car was a woman -- who actually was dead. Due to face a NSW Supreme Court trial on Monday, the high profile judge instead on Friday pleaded guilty to making false statements over a $77 speeding fine. Justice Bruce James then revoked non-publication orders made at previous hearings, which included revelations that Einfeld was receiving radiotherapy for prostate cancer...." More (Sydney Morning Herald 10.31.2008). Some people are upset that Judge Einfeld will get to keep his pension. More (Melbourne Herald-Sun 10.31.2008). We're not. He earned it as much as if he'd earned a pension on some other job. One doesn't lose an ordinary pension over a guilty plea to making a false statement; neither should he. Earlier. The latest in the prosecution of Judge Einfeld for 'perversion of justice' (The Daily Judge 10.17.2008). Here are the results of a Google search pointing you to our many previous Einfeld postings in this seemingly never-ending saga.
Top judge says top judges aren't crooked. "The outgoing chief of Indonesia's Supreme Court Friday denied corruption was rife at the highest level of the country's judicial system, despite a slew of disputed decisions and graft allegations. Mr Bagir Manan, 67, retired from the nation's top judicial post after a seven-year-stint amid two ongoing cases into bribes and embezzlement involving court officials...." More (Straits Times 10.31.2008). Comment. That's reassuring. We take him at his word.
Will Ghana become a center of judicial excellence? "Mrs Justice Georgina Theodora Wood, Chief Justice (CJ), on Thursday observed that the provision of adequate infrastructure for the judiciary would not only help change the face of justice delivery in the country, but would also make it a centre of judicial excellence...." She made the remarks "at the inauguration of an Administration Block and a Courthouse at the premises of the Supreme Court in Accra...The Administration Block consists of a twin four-storey complex which has chambers of Justices of the Superior Courts; the CJ's Secretariat; and adequate offices for the administrative staff; a library with binding and reprographic facilities and reading rooms." More (My Joy Online 10.31.2008). Comment. The plans to erect the complex go back as far as 1978. No word on how long it will take before Ghana will become known as a center for judicial excellence. We here at the International Headquarters of The Daily Judge aim to do our part to offer free advice to the Ghanians, solicited or not, whenever we deem it would be helpful.
Judge 'Ace' Henderson is cleared to return to work, will seek huge damages from police. "Alex (Ace) Henderson will return to work as a judge in the Grand Court of the Cayman Islands early next week after he was cleared Wednesday of allegations he counselled someone to commit a crime. But, after weeks of speculation about his professional conduct, the former B.C. Supreme Court justice said his legal reputation may never be repaired, and he is now seeking damages against local police for what could amount to millions of dollars...." More (Vancouver Sun 10.30.2008). Earlier. For links to earlier postings, see, More on 'Ace' -- he refused to answer questions during two-day interrogation (The Daily Judge 09.27.2008). Comment. In our initial posting, we said that we presumed he was innocent of all wrongdoing. No, we were not prescient. We simply believe in presuming that people being investigated or prosecuted are innocent of any criminal wrongdoing until proven otherwise.
Complaints against Chief Judge Nottingham are dismissed now that he's resigned. The dismissed complaints against the Colorado federal judge alleged he drank heavily while spending $3,000 at a strip club in Denver in one visit, got into a minor row with a handicapped woman who complained over his parking in a handicapped space, used his court computer to visit porno websites but then lied when questioned about it, used his court-issued cell phone to solicit prostitutes, and asked one prostitute to lie about their relationship. These complaints were dismissed a day after Nottingham's resignation as an active federal judge took effect. The chief circuit judge, Robert H. Henry, says misconduct procedures apply only to active federal judges and therefore the complaints are now moot. More (Rocky Mountain News 10.30.2008), and more (San Diego Union-Tribune 10.30.2008). Earlier. For links to our earlier postings, see, Chief Judge Nottingham, under investigation for misconduct, resigns (The Daily Judge 10.22.2008). Comment. No word on whether the feds are investigating Nottingham with an eye to filing criminal charges.
Should supreme court be chosen by lottery? A new constitution in Ecuador dissolved the old supreme court. Now the government has picked a new "temporary" 21-member (!) supreme court, to serve until 2009. They picked the justices by, in essence, drawing names from a hat filled with the names of the 31 former justices. Some of the judges picked reportedly have said the process is "degrading" and they won't serve. More (AP.Google 10.30.2008). Comment. Famed trial attorney Gerry Spence, author of "How to Survive the Tyrant Judge" (parts I, II, and III), doesn't exactly favor "the lottery method" but, if I understand him correctly, favors picking judges sort of the way we pick jurors. Specifically, he has argued that "[o]ur judges should be drafted in the same manner that jurors are drafted -- to act as judges for a limited calendar of cases after which they would be released to return to their practices. Every trial lawyer should be required to support the system in this fashion the same as every citizen is required to serve as a juror. If judges were drafted from the trial bar we would soon clear our dockets...." More at G. Spence, From Freedom to Slavery 95 (1996) (Books.Google). I don't buy his proposal, but check out the book if you want to understand his reasoning first-hand.
Those 'unbiased' judicial ratings by the 'experts,' the bar associations. In Chicago ten different bar associations participate in a process of rating judges who are up for re-election.The ten groups are: Chicago Council of Lawyers, Chicago Bar Association, Asian American Bar, Black Women Lawyers, Cook County Bar, Decalogue Society of Lawyers, Illinois State Bar, Lesbian and Gay Bar, Puerto Rican Bar and Women's Bar Association of Illinois. Guess which groups' ratings carry the most weight in concluding whether a judge is or is not "qualified"? The first two. Mary Mitchell, a Sun-Times columnist, has an interesting column questioning why one judge, Cook County Judge Evelyn B. Clay, received a "not recommended" rating, whereas another, Cook County Judge Sheila McGinnis, received a "qualified." Judge Clay, it turns out, "wasn't a slated candidate when she ran 12 years ago and was not backed by a political party"; rather, "[s]he got elected by going to community forums across the county promising to be a judge of fairness and integrity." It also turns out that Clay had the audacity to take a strong stand against prosecutors peremptorily striking black jurors and thereby getting all-white jurors in criminal cases against black defendants in a court that predominately serves black people. On the other hand, Judge McGinnis got a "qualified" rating despite the fact that she "was arrested May 9 for DUI after Tinley Park police said she crashed into a van" and "refused to 'blow' for a Breathalyzer test." Concludes Mitchell: "To these powerful law groups, a judge with a DUI rap hanging over her bench is no big deal. But a judge who objects to an 'all-white' jury isn't fit for the robe. That's disappointing. Because it's these kinds of dubious rulings that make law groups more of a hindrance than a help in the judicial retention process." More (Chicago Sun-Times 10.30.2008). Further reading. For my views on bar straw polls, lawyer endorsements, etc., see, my extended comments at SCOMN justice, facing opposition, touts endorsements, responses to poll of lawyers (The Daily Judge 10.29.2008). For my views on whether a judge who gets caught driving under the influence or who refuses testing is unfit for judicial office, see, my comments at Is judge's legacy at stake as result of DWI arrest? (The Daily Judge 10.29.2008).
Judges may get big pay increase based on outdated rosy economic forecast. "NSW judges are to receive pay rises of up to $15,000 under an outdated pay determination that still refers to the nation's bright economic prospects. The decision, which pre-dates the international financial crisis, was finished almost seven weeks ago and refers to positive economic forecasts that are months out of date...." More (The Australian 10.31.2008).
'Sober as a judge, after five Brobdingnagian years.' "Stand by your dictionaries. The 20-volume Oxford English will do for reading Justice Neville Owen's reasons in the gigantic Bell Group litigation. Of course, he doesn't use a prosaic word such as 'gigantic'; rather, it's a 'dispute of Brobdingnagian proportions' and the judgment itself he casts as 'megillah ...jeremiad... sesquipedalian.' He adds that he tried to take an 'ataraxic' approach to the enterprise. It took him two years to compose more than 2600 pages of his thoughts, after listening to 404 days of argument. From beginning to end, the litigation was five years -- and it's still not finished...." -- From Richard Ackland, Sober as a judge, after five Brobdingnagian years (Sydney Morning Herald 10.31.2008). Comment. Ackland concludes his lengthy review, which I recommend reading, with this quote from Justice Owens:
From time to time during the last five years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeast-based substance. It will most certainly involve a complete avoidance of making decisions and writing judgments.
Judge is charged with misconduct. "The Indiana Commission on Judicial Qualifications has filed misconduct charges against former LaPorte Superior Court Judge Walter P. Chapala [now a so-called "senior judge"], alleging he suspended most of a 20-year drug sentence in exchange for a $100,000 donation to two court programs...." The commission also claims that Chapala "gave preferential treatment to his daughter-in-law's nephew in an unrelated case." More (Chicago Tribune 10.29.2008).
SCOMN justice, facing opposition, touts endorsements, responses to poll of lawyers. "[Justice Lorie Gildea] proudly notes that Minnesota's three most recent past chief justices have endorsed her, as have 115 appellate lawyers and eight past presidents of the Minnesota State Bar Association. She was supported by 72 percent of the lawyers who voted in the bar association's straw poll. 'The lawyers know who the good judges and justices are,' Gildea said...." More (Rochester Post-Bulletin 10.29.2008). Comments:
a) For those of you who don't know her background, Justice Gildea's hubby, Andy Gildea, is "a top staffer in the Minnesota House Republican Caucus." Apparently entirely as a result of her experience as an assistant county attorney and as an associate general counsel at the University of Minnesota and not as a result of her political connections, Republican Governor Tim Pawlenty, who invariably finds the "best person for the job," -- see, Annals of cronyism: MN's Pawlenty appoints another colleague to bench (The Daily Judge 06.25.2008) -- appointed her to Hennepin County District Court. Then, based on Gildea's impressive service as district court judge over an extended period of a few months, Pawlenty elevated her to SCOMN when a vacancy developed. Now Gildea is facing opposition in the general election from a veteran Hennepin County trial judge, Deborah Hedlund.
b) I don't believe in endorsing anyone or even disclosing who I'm voting for in judicial races. So what I'm about to say doesn't necessarily reflect how I'll vote in this contest -- although it does reflect personal experience, set forth in a 09.21.2000 entry (click here and scroll down) to my personal campaign weblog (blog) in my own campaign/noncampaign for the state supreme court. Stated succinctly, I'm amused whenever a SCOMN incumbent touts the endorsements of past judges and past bar association presidents and the results of the bar's straw poll sent to lawyers. If you check, you'll find that the "endorsers" typically "sign on" before they even know if the incumbent will face opposition. They do so -- I believe -- i) out of loyalty to "the system" (from which many of them personally have benefited or hope to benefit) and i) out of a belief that incumbent judges generally shouldn't have to face opposition but should be re-elected even if their opponents are in some sense superior. As for the "straw poll" or bar association plebiscite, typically the incumbent, who is usually better-financed, sends out a mailing to members of the bar association timed to arrive shortly before the ballots sent to the members arrives. The opposing candidate is free to eat cake, too -- that is, do the same -- but often doesn't have the financing allowing him/her to do so. Candidates are limited as to what they can say in the literature accompanying the poll, and the ballots are sent only to state bar association members. I chose not to belong to the state bar (it's way too expensive for me to justify belonging under a cost-benefit analysis) and therefore didn't receive one this year. If I'm not mistaken, only a relatively small percentage of attorneys typically reply. If you've studied statistics and polling, you know that the results are unscientific and not necessarily representative of what lawyers think. Anyhow, even if the results are in some sense "representative," the notion that "lawyers know" -- that they have special insight into who the best judges are, etc. -- is the same sort of reasoning that is being used to try deprive voters of a role in judicial selection, replacing real elections with fake one-candidate retention elections. So my advice to Minnesota voters: don't hold it against Justice Gildea just because she made it to the court the way she did, but don't give much credence to her argument that "lawyers know." Similarly, don't pay any attention to the newspaper editorial board endorsements. By and large, whether they even realize it, much less admit it, the newspapers have bought into the groupthink of law school professors, political science "experts," bar association types and judges who've benefited from the incumbent-skewed system. In short, my advice is to ignore the "experts."
c) Instead of listening to the "expert" advice, check out Justice Gildea's website and see if she has anything to say, then check out that of her opponent. Give each of them a fair shake and then vote as you see fit. And be thankful voters still have a say in judicial selection.
Is judge's legacy at stake as result of DWI arrest? "[E. Curtissa Cofield,]...Connecticut's first black female Superior Court judge[,] is considered a pillar in the judicial system and in the Greater Hartford community. She is known to be both firm and flexible in dealing with the people who come to her court. Some have viewed her as condescending, even arrogant. However, more times than not the former single mother of two and daughter of a Baptist preacher is able to connect to young people at a personal crossroads. But all the good will she's accomplished over the last 18 years could soon fade to the background. Taking center stage now is her arrest this month on charges of drunken driving...." -- From Stan Simpson's column, DUI Arrest Clouds Judge's Record of Doing Good (Hartford Courant 10.29.2008). Earlier. DWI judge drivers her BMW into trooper's car, is charged with DWI (The Daily Judge 10.12.2008). Comment. In some jurisdictions a judge may be removed from office for a DWI offense. I don't know offhand if CT is such a jurisdiction. In those jurisdictions, there is a great incentive for a judge to do what he can to avoid a conviction. In more sensible jurisdictions, like Minnesota, a judge who is properly arrested for DWI typically pleads guilty quickly, often at the first available opportunity, and takes her medicine. See, e.g., Minnesota judge pleads guilty to DWI (The Daily Judge 06.16.2005). Also, in Minnesota at least, it is entirely possible that a judge might fare worse by refusing to submit to a properly-requested blood-alcohol test than by submitting, pleading guilty if the results indicate a violation, and making sure it doesn't happen again. To judges everywhere, in both types of jurisdictions, I remind you of BurtLaw's Rule-of-Thumb # 43.1 for avoiding judicial discipline: "Don't drive if you've had anything to drink." Reason? i) It doesn't take much booze to impair your driving in some way. ii) Moreover, even if the proverbial two drinks don't affect your driving, you still might get arrested. iii) If you're arrested, even if you "get off" legitimately, the public will have its doubts. To the public everywhere, I remind you that "we" err in expecting judges to be perfect. A perfect person, if there were such a bird, might not make a very good judge. "Fill the seats of justice with good [people], not so absolute in goodness as to forget what human frailty is...." Sir Thomas Noon Talfourd.
Yet another judge is scolded for rudeness in court. "A retired San Bernardino County judge has been publicly scolded by California's judicial watchdog for rude, demeaning comments to attorneys. In one case, Superior Court Judge Paul Bryant Jr. suggested a prosecutor had 'rocks for brains' for agreeing to a settlement. He called another lawyer 'obnoxious' in front of his client...." More (San Jose Mercury News 10.29.2008). Link to admonishment. Comments. a) I haven't read the admonishment but I've linked to it. The news report doesn't say whether the judge's comments were in some sense "deserved." b) BurtLaw Rule-of-Thumb 83.5, a subcategory of The Golden Rule, specifies: "When presiding in court, treat the litigants (and everyone else) as you would like and reasonably expect to be treated in the same situation if the roles were reversed."
Family court judge is removed from bench. "New York's top court ordered [Acting Supreme Court Justice David Jung] removed for misconduct Tuesday, finding he seriously compromised the rights of five people by holding child support and custody proceedings while they were jailed or by refusing to assign them attorneys...." More (Newsday 10.29.2008).
SCOPA justice says sorry if anyone offended by anti-Obama e-mail she sent to Jews. "A former Pennsylvania Supreme Court justice is apologizing for signing an e-mail to Jewish voters that likened a vote for Barack Obama to ignoring warning signals that led to the Holocaust. Sandra Schultz Newman says she regrets that she didn't review the final draft more carefully before it was released...." More (Guardian UK 10.28.2008). Comment. What's with former supreme court justices getting involved in nasty negative campaigning for the likes of McCain-Palin against Obama-Biden (Pennsylvania) or Norm Coleman against Al Franken (Minnesota)? As to the latter, see, Former CJ of SCOMN endorses GOP's Coleman over Franken (The Daily Judge 09.11.2008).
Judge as 'goodwill ambassador,' or why Justice Holmes must be chuckling in his grave. "A judicial history buff, [Justice Paul H.] Anderson brings a lot of institutional knowledge to the job. He is also extremely active in the court's outreach efforts, and has earned the informal title of the court's 'goodwill ambassador.'" -- Mark Cohen, Justice Paul Anderson (Minnesota Lawyer Blog 10.22.2008). "[Anderson] has frequently been called the high court's 'goodwill ambassador' due to his amiable disposition and omnipresence at community events and other outreach efforts." -- Mark Cohen, Justice Paul Anderson already gearing up for '08 election (Minnesota Lawyer Blog 12.10.2007). Comments. a) Pretty funny stuff. Here's an excerpt from something I wrote awhile ago about judicial "outreach":
Sadly, too many judges are busy "being" judges than "doing" the daily drudge work that is necessary to responsibly exercising judgment in a way that is consistent with the oath and office of judge. Too many of them are good at going on spring & fall "tours" outstate, holding court in high schools, attending bar functions, reading books to kids in primary school (a la President Bush on 09.11.2001), signing autographs, and, yes, even in participating in non-court-related ribbon-cutting ceremonies.
Excerpted from my more-extended comments at Alito joins Stevens in opting out of 'cert. pool' (The Daily Judge 09.26.2008). b) BTW, is there something about being named "Paul Anderson" that predisposes one to being a "goodwill ambassador"? Consider this from the Wikipedia entry for "Paul Edward Anderson (October 17, 1932 - August 15, 1994) [who] was an Olympic Weightlifter, strongman, and professional powerlifter": "Upon his return to the USA [after winning the world championship], he was received by then vice-president Richard Nixon, who thanked him for being such a wonderful goodwill ambassador." And consider this, from a Strib obituary: "Paul Anderson, of Sun City West, Ariz., an Air Force band mate [of the deceased], said they served as goodwill ambassadors in Europe, playing in several countries. They played in a parade down Paris' Champs-Elysees." More (Star-Tribune 10.03.2007). Other equally-well-known "goodwill ambassadors" include Angelina Jolie, Sarah Jessica Parker, Danny Kaye, Nicole Kidman, Princess Bajrakitiyabha, Maria Sharapova, Geri Halliwell, Wag the Dog, Princess Haya Bint Al Hussein, Dragan Stojkovic, Angelique Kidjo, Mia Farrow. c) Want to become a "goodwill ambassador"? Read How to Become a Goodwill Ambassador (e-How).
Annals of cheap political arguments about judicial appointments. "Senator Obama's judges would coddle criminals. I will appoint judges who will hold criminals accountable." Dan Slater, McCain: Obama's judges would coddle criminals (WSJ Law Blog 10.27.2008). Comment. In a section of Thoreau's Walden titled Economy, always worth re-reading, is the line that "it is a characteristic of wisdom not to do desperate things." You know John McCain is desperate when he rolls out that old argument. For my not-at-all desperate views on crime and punishment, see, the position paper I wrote and posted on my campaign blog/website in my 2004 antiwar noncampaign (I call it a "stand") for the GOP nomination in MN's Third Congressional District against Congressman Jim Ramstad.
Restoring historic courthouse as a response to economic crisis? "Renovation of the historic Elgin County Courthouse was touted here yesterday as an important psychological and economic boost for this layoff-battered city. Ontario Opposition Leader John Tory and Mayor Cliff Barwick agreed giving the 155-year-old Wellington Street architectural gem a new lease on life would help the city of more than 30,000 cope with the loss of about 3,000 manufacturing jobs, among them about 2,000 at the Sterling Truck plant alone...." More (London Free Press - Ontario 10.25.2008). Comment. Good idea. We set forth our views on historic preservation in detail at The failed campaign to save a historic courthouse from demolition (The Daily Judge 03.05.2008).
Clerk of Court Laura Brent's battle with the judges. "Embattled Yellowstone County Clerk of District Court Laura Brent asked the state Supreme Court on Thursday to throw out 11 judicial orders issued against her by the county's five district judges...The orders sought changes in how Brent runs her office, which handles paperwork and scheduling for the judges. Brent said she had to ask for help from the Supreme Court because the judges threatened her with contempt of court...." The judges deny threatening her with contempt and question why it's taken her 11 months to challenge the orders. Chief District Judge Gregory Todd says, "'Evidently, her answer to our concerns is to ignore us or thumb her nose at us and file a lawsuit, rather than try to help the judicial system and the lawyers and parties in the system. It's a poor way of doing business.'" Brent, a Republican, is facing a challenge in the general election from Democrat Carol Muessig. More (Billings Gazette 10.25.2008). Comment. As we said back in 2005, it's BurtLaw Rule-of-Thumb No. 2437.45(2): "In a power struggle between a judge and a clerk, the judge will prevail." Subd. (a) further provides that one protesting a request such as this ought to have a better reason than, say, "You're not my boss" or "It's not in my job description." But, of course, some clerks of court are more independent than others. The clerk of court for SCOMN (now called the clerk of appellate courts) used to be elected but now is appointed and serves at the "pleasure of the court" (which, of course, doesn't exactly mean the court can fire the clerk arbitrarily). Further reading. Links to previous entries on "clerks of court" in The Daily Judge.
Omitting judicial contest from ballot in MN -- wishful thinking? "Stearns County had to reprint [127,000] ballots [at a cost of $50,000] after a judge's name was left off -- even though the judge is running unopposed. District Judge Steven Cahill's name apparently was left off a computerized list of candidates compiled by the Minnesota secretary of state's office that was provided to companies that print ballots...." More (Pioneer-Press 10.24.2008). Comment. As we've noted before, members of the judicial power elite in MN hate the idea that judges have to face potential opposition every six years and they're doing their best to try get the state constitution changed so voters don't have a say in judicial selection. But we doubt that this printing mistake qualifies as a Freudian slip. It's just another "MN Oops!" moment. Why (you ask) does the judge's name have to appear on the ballot since he's running unopposed? It's because it's always possible someone might run a so-called "sticker" or "write-in" campaign. Judge Cahill doesn't get to serve for the next six years unless he gets "elected" by a majority of those voting for that particular judicial office.
Kathleen Parker on why McCain picked Palin. "One does not have to be a psychoanalyst to reckon that McCain was smitten. By no means am I suggesting anything untoward between McCain and his running mate...But there can be no denying that McCain's selection of her over others far more qualified -- and his mind-boggling lack of attention to details that matter -- suggests other factors at work. His judgment may have been clouded by...what?" -- From Something About Sarah (Washington Post 10.24.2008). Comment. With reference to McCain's pick of Palin I've rhetorically asked a couple times: "What is it that causes old guys to go all giddy over inexperienced 40-something women and pick them for high position?" See, my comments at Dahlia Lithwick on Sarah Palin -- Justice Barracuda? and at CEO: 'My son has exactly the ideas needed to turn this company around.'
When people in the legal profession talk about pro bono publico, they usually seem to be talking about providing free legal services to poor people -- which often translates into creating yet more litigation in what many argue is an overly-litigious society. Pro bono publico means "for the good of the public." On his own time, in his own way, without belaboring the fact he's a judge, Judge [Louis] Schiff is serving the public every bit as much (maybe more) when he teaches kids to toot their horns as when he bangs his gavel. We remember from our years as an aide at the Minnesota Supreme Court the time Chief Justice Douglas Amdahl was a few minutes late (for him) in arriving at the capitol one day because he'd stopped to change a tire for a woman on the freeway. He didn't tell us; we read about it when the woman tipped off the press. Justice Frankfurter liked to say that the most important office in America was that of citizen. I used to say that Chief Justice Amdahl was really just your next-door neighbor. I meant it as high praise. In "just" being a good citizen, a good neighbor, a good parent, a good mentor, we serve the public good.
William James on good citizenship. "The deadliest enemies of nations are not their foreign foes; they always dwell within their borders. And from these internal enemies civilization is always in need of being saved. The nation best above all nations is she in whom the civic genius of the people does the saving day by day, by acts without external picturesqueness; by speaking, writing, voting reasonably; by smiting corruption swiftly; by good temper between parties; by the people knowing true men when they see them, and preferring them as leaders to rabid partisans or empty quacks."
Justice Thomas extols listening (during oral argument) as judicial virtue. "The U.S. Supreme Court justice least likely to speak up during oral arguments told lawyers gathered in Atlanta on Thursday that judges should spend more time listening and less time talking....He spoke before a crowd of about 200 at the State Bar of Georgia headquarters in Atlanta...." More (Law.Com 10.24.2008). Further reading. It's our observation that SCOTUS justices like to recycle/reuse their speeches. There's nothing wrong with this; we do it, too. Anyhow, Justice Thomas gave a similar (identical?) speech back in 2006, and we posted an entry (with commentary) on it. We could rely on the old legal doctrine of "adoption by reference," but instead we'll follow Justice Thomas' example and recycle/reprint the entry here as an "oldie-but-goodie":
Justice Thomas complains about aggressive judges. "On appellate judges' manners: Thomas said he disapproves of what he calls increasingly aggressive questioning of attorneys by appellate judges from the bench. Thomas said that as a young state attorney general arguing before the Supreme Court of Missouri, he recalled justices who 'actually allowed me to make my argument. They listened to what I had to say...Nor did I ever feel I had not been heard or did not have my day in court...It seems fashionable now for judges to be more aggressive in oral arguments. I find it unnecessary and distracting...I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers...I think the judges need to listen if the arguments are to be effective.'" More (Law.Com 10.27.2006). Comment. I agree completely. With most justices who are overactive or hyperactive during oral argument, it's mostly "about them." Too many justices -- too many people -- are overly enamored with the sounds of their own voices. Compare and contrast. a) "Red had the greatest of ears,' [Bill] Russell told USA Today in 2004. 'After he talked to a player four times, he knew how to communicate with him. And that's important. And you can't treat everybody the same. If you treated everybody the same, they'd all get the same salary. Each year after I got in shape, Red didn't have me scrimmage anymore. He said he's not going to play me 46 minutes a game and wear me out in practice, too. So when we started scrimmaging, I'd go sit on the scorer's table and drink tea.'" Obituary for Arnold 'Red' Auerbach, Boston Celtics coach, dead at 89 (N.Y. Times 10.30.2006). b) I had a one-eyed coach, Leon Brockmeyer, who "saw" better than most people with two eyes, who listened to you even if you didn't talk much, and who -- despite being a master at building teams -- treated each player differently (because we're all different), just as Auerbach did. See, my mini-essay of remembrance and appreciation.
Oops! Judge didn't know she shouldn't contribute to candidates. Utah's chief federal judge, Tena Campbell, was "nabbed" for giving the Obama campaign a total of $300, in violation of judicial ethics rules. She listed her profession as "lawyer," her employer as "government" and her address as her court chambers (another "Oops"?). Notified of the judge's mistake, the Obama campaign says it'll return the money. More (Salt Lake City Tribune 10.24.2008). Comment. Tena, Tena, Tena, haven't you read Canon 7 of the Code of Conduct for U.S. Judges? Judge Campbell, btw, is a Clinton appointee. Her hubby Gordon, who also is a lawyer, is the author of a novel, Missing Witness. If he shares her enthusiasm for Barack, there's nothing preventing him from donating $300 in his name. It's a little-known BurtLaw Loophole, one based on the fact that the spouse of a judge, like the spouse of anyone else, is, in the immortal words of Marlo Thomas, "free to be." Further reading. a) On the separate issue of political contributions by lawyers seeking judicial appointments, see, Money trail leads to Bush judges (Salon 10.31.2006). b) Want to find out if your favorite judge (or your neighbor) has made political contributions? Try one of the dedicated search engines. Huffington Post has a good one. This NewsMeat search, e.g., shows contributions of $200 or more that Reagan appointee, Circuit Judge Alex Kozinski, made back in 1991-1992. c) ABA MCJC Canon 4.1. d) For links to my previous postings on judicial spouses, click here. Update. I saw in this morning's SLTrib (10.25.2008) that Judge Campbell has issued an apology, saying until recently she wasn't aware the rules prohibited contributions. In our view, that ought to settle the matter. After all, it's not as if she contributed the money to McCain. :-) Moreover, a) we like her looks (click on thumbnail picture of her, above, to see the SLTrib's high-resolution picture of her), and b) as our readers know, we're not only "soft" when it comes to punishment of people convicted of crimes but "soft" on punishment of judges who commit misconduct.
Female judge says in-laws are harassing her with dowry claims. "A woman judge[, Madhuri Raj Lal, has lodged a complaint against her in-laws alleging dowry harassment and demands for Rs one crore, police said on Thursday. is posted as Judicial Magistrate First Class (JMFC) in the district court [in Katni]...." Judge Lal married Dr. N.R. Lal in 1994. He died last year. It's his parents and brother, I guess, who are allegedly harassing Judge Lal. The complaint relies on the Dowry Act. More (Times of India 10.23.2008). Further reading. Dowry Law in India (Wikipedia - permanent link to entry as it appeared on 10.23.2008); Pan Mohamad Faiz, Dowry and Bride Price in India -- A Socioloegal Perspective (FaizLawJournal 01.06.2008). Comment. Without reference to the allegations or parties in this case, I note that some critics argue that the Dowry Act needs revision. Just as some people in the U.S. claim that it's too easy for women to obtain temporary restraining orders against men for alleged domestic abuse and to use TRO's as tools in divorce and custody cases, some people in India claim that many women are misusing the Dowry Act to get revenge on husbands, on in-laws, etc. See, Vinayak, We need to look afresh at the Dowry Act (IndiaInfo - Opinion 08.31.2003). At the other extreme, a quick Google search reveals lots of examples of people ignoring the Dowry Act.
A bench for Judge Hollywood at the dog park. "A bench in honor of [the late] Superior Court Judge Harrison Hollywood is being dedicated at 10 a.m. today at the off-leash dog park he helped found -- Canine Corners at Harry Griffen Regional Park, 9550 Milden St., La Mesa...." More (San Diego Union-Tribune 10.23.2008). Comment. Reminds me of a tombstone in the city cemetery in my home town for a bachelor fellow named Jule Hull who loved horses (and books). Among other things, Jule was "the driver" for Doc Scofield in "the old days" -- hooking up the horse(s) and driving Scofield in buggy or sleigh to countless farmhouses in all kinds of weather at all hours. After Jule died, Scofield erected a tombstone in his memory with an engraving of a horse and this inscription, "He loved horses." Doc Scofield, who also was the town historian and was still alive when I was a kid, had class.
Annals of court-appointed special(ly biased) panels. "A three-judge panel appointed today to hear a misconduct charge against Justice Michael Gableman over one of his campaign ads included a reserve judge who sat on a Wisconsin State Bar committee that criticized the spot as 'offensive and misleading.' The order establishing the panel was rescinded late this afternoon...." More (WisPolitics 10.22.2008). Comment. Carelessness in "panel-appointing" isn't confined to SCOWIS. See, Annals of 'Oops! There's a teeny-weeny conflict' (The Daily Judge 08.22.2008) (commenting on SCOMN's "once again" getting egg on its face, this time in appointing a special panel to hear an election case involving a colleague -- three of the five retired supreme court judges intitially named to the panel were found to be publicly supporting the colleague's candidacy).
Rehnquist papers are donated to the (Herbert) Hoover Archives. "The papers of the late Chief Justice William Rehnquist, including correspondence with fellow justices during 33 years on the Supreme Court, have been donated by his family to the Hoover Institution Archives at Stanford University, the institution announced Wednesday. Rehnquist attended Stanford as an undergraduate and a law student and was a member of Hoover's Board of Overseers...." More (San Francisco Chronicle 10.23.2008).
Judge running for SCOMN gets her campaign in hot water. "Hennepin County District Judge and Minnesota Supreme Court candidate Deborah Hedlund received an e-mail Monday with the subject line, 'Can Muslims Be Good Americans?' The e-mail came to Hedlund and several other people from Matt Look, owner of Ramsey-based Look Signs, with whom Hedlund was negotiating for some lawn signs." What does the forwarded e-mail say in response to its own question? I think you know the sort of forwarded e-mail. In a posting of mine dated 10.19.2008 and titled The KKK rally on the courthouse steps in Donalsonville, GA., I added this Comment about all the anti-Obama e-mail I'd received:
And in other places around the country people don't so much hide their idiotic and hateful racist attitudes behind white sheets but instead hide them behind coded language and bogus issues. What am I saying? I'll answer the question with a question: Have you read some of the "Have you heard?" and "Did you know?" e-mails about Senator Obama circulating on the internet?
Anyhow, "In her reply message to Look -- which she inadvertently sent to all original recipients -- Hedlund wrote: 'Matt, We speak the same language. And I still need to let voters know they have a choice to 'Seek Justice, Vote For Experience' for the Minnesota Supreme Court.' She goes on to discuss negotiations for the signs she wants him to make...." Well, as this posting indicates, someone understandably made sure the press got ahold of this "gotcha" moment, and understandably so. Now Hedlund is embarrassed, as it appears Mr. Look may be, since he is quoted saying he doesn't agree with everything in it but was merely passing it on. More (Pioneer-Press 10.22.2008). Comments. a) "Hedlund said [yesterday] that she did not read the message about Muslims and that her comment about speaking 'the same language' referred to the fact that she believed she and Look had a deal on the signs." I have no way of knowing if this is true. It's certainly open to the interpretation that she agreed with the message about Muslims. One of the great things about open, transparent judicial elections is this sort of stuff tends to come out. And it's "stuff" that voters, as selectors, are justified in considering. It's too bad, if Hedlund disagreed with the message, that she didn't either a) not respond or b) respond as I've responded to such stuff. As I said, I've received "forwards" from friends/relatives of these "Did you know?" e-mails about Senator Obama. Most of the "forwarders" don't even agree with the nonsense, and maybe Mr. Look didn't either. I got one such e-mail the other day implying that Billy Graham's "team" didn't like Obama, for a multitude of reasons. I replied to the person who forwarded it, "I class this sort of mail as 'junk mail.'" To another anti-Obama piece I received a few weeks ago I replied, "That's yet another example of the racist-inspired anti-Obama crap that's flooding the internet." To an old girlfriend of my late bro in Texas who sent one that questioned Obama's patriotism because he didn't wear a flag pin, I wrote: "It's a cheap old political tactic -- see, Sinclair Lewis, It Can't Happen Here (1935) -- to question the patriotism of one's opponent. Voters are thought to be suckers for it. The guy who's reluctant to wear his patriotism or his religion on his sleeve, that's my guy." Maureen Dowd's excellent column in today's NYT titled 'A Crescent Moment,' about Colin Powell's terrific response to this sort of cheap politics on Meet the Press the other day is on point and I recommend it. b) I've said it before and I'll say it again now: Our two main general-circulation newspapers in the Twin Cities, although happy to report in depth whenever a sitting judge or judicial candidate allegedly commits misconduct or apparently commits a gaffe, literally never cover judicial campaigns in any significant way other than to parrot the judicial establishment's (and the papers' editorial boards') views that judicial elections are a bad thing, that they signal the end of judicial independence, etc., blah-blah, etc. See, Should we shed tears for 'small-budget' subsidized judicial candidates? (The Daily Judge 09.23.2006). Also, they love to print op/ed pieces bemoaning the fact that voters in judicial elections know nothing about the candidates. See, Law prof's advice on voting in judicial elections (The Daily Judge 10.20.2008). I recommend that voters visit the Minnesota Lawyer Blog for info that might be helpful. When I ran in 2000, I publicly said that I appreciated the professional, fair, extensive way Mark Cohen, Editor of Minnesota Lawyer, covered the campaign and that I thought he was the only editor of any newspaper who could hold his/her head high in that regard. Mark, a University of Chicago Law School grad, is still editor and still doing a first-rate job.
Judge pleads no contest, resigns. "Clark County Family Court Judge Nicholas Del Vecchio was ousted from office Tuesday by the Nevada Commission on Judicial Discipline after pleading no contest to 11 ethics violations. The panel's decision cuts short a judicial term that would have expired in early January. Del Vecchio, 51, was defeated in a bid for re-election in the August primary...." More (San Jose Mercury News 10.22.2008).
Law prof's advice on voting in judicial elections. His basic advice? a) Ask a lawyer who to vote for. b) If you don't know a lawyer, then vote for incumbents unless some elite lawyers recommend otherwise. Charles E. Lundberg: How to vote for a judge when you don't know the first thing about it (Star-Tribune - Op/Ed 10.20.2008). Comment. What nonsense. Time and again we've seen, in all walks of life, that the experts and specialists and members of various elites and professors are wrong. Witness the mess our economy and government are in, thanks to delegating to much authority to the experts. Thomas Jefferson said, "If you state a moral case to a plowman and a professor, the farmer will decide it as well, and often better, because he has not been led astray by any artificial rules." The same attitude that seems to underlie Professor Lundberg's opinion piece is that underlying the so-called Quie Plan to substitute fake retention elections (the "Ozark State Plan") for the real judicial elections (the historic Minnesota Plan). Stated baldly, the members of the judicial elite really 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 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. Update. Paul Woods, who identifies himself as product manager for a publishing firm, has a zinger of a response to Professor Lundberg's op/ed piece. Paul Woods, How to vote for a judge -- the right way (Star-Tribune 10.25.2008). Single-page version.
Harris Poll results suggest voters overwhelmingly want state judges elected. "While the presidential and congressional elections tend to dominate the news, there are also some interesting issues surrounding the process of choosing our judges. Some states elect judges, and other states appoint them, but a 55 percent majority of Americans thinks state judges should be elected. Only one in five (19%) believe they should be appointed. These are the results of a new nationwide Harris Poll...The study was conceived and executed by Harris Interactive(R), with valuable input (but no financial support) from The American Bar Association." More (Market Watch 10.20.2008).
Board says judge offered leniency for sexual favors, urges removal. "A small-town judge is off the bench, with a recommendation that he be removed permanently from office, after [the judicial standards commission] ruled he did, in fact, offer leniency to female defendants in return for sexual favors. The fate of Gary Hicks, a two-term justice of the peace from Libby, now is in the hands of the Montana Supreme Court. Hicks solicited sex in exchange for court leniency, the commission ruled, and he retaliated with high bail amounts when rebuffed...[In one instance, h]e visited [a] woman in the jail, tickled her feet and remarked on her 'cute little toes,' before telling her 'that someday she will owe him for coming in and releasing her on her own recognizance,' the Judicial Standards Commission wrote...." Nine women complained. Hicks' attorney, Tami Fisher, earlier argued that "His intent was innocent. He was trying to be friendly and likable and approachable, to put people at ease, and his comments were misunderstood." More (Missoulian 10.21.2008). Comment. To quote my hero, Emerson, "To be great is to be misunderstood." Or was it, "Anyone who is misunderstood must be great"? Or is it...? One might argue that for Emerson to say such a thing was to be misunderstood, but then that is true only if one takes the line out of context. Here it is, in context, in his great essay, Self-Reliance:
A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day. -- 'Ah, so you shall be sure to be misunderstood.' -- Is it so bad, then, to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood. [Emphasis supplied.]
Sir Mark Potter urges end to 'secret justice.' "Britain's most senior family judge has said that family courts should be opened to the media to dispel the "myths and inaccuracies" surrounding the system...." Details (UK Times 10.21.2008). Comment. "When I was in college at the U. of Minn. in the early '60's in a class in juvenile delinquency I sat in on a nonpublic juvenile court hearing in Minneapolis involving a very young boy, from a poor African-American family, who was caught stealing some pop. I was stunned -- and quietly enraged -- when the judge ordered the boy removed from the custody of his mother, who cried and pleaded with the judge not to do so...." -- From 'My Felonious Past,' (scroll down) at Burtlaw's Law and Kids at BurtLaw's Law and Everything Else. Absent openness and public accountability, it's too easy for the judge in juvinile/family court to become, in one lawyer's words, "a tyrant in a very small kingdom." Lawyer recalls a juvie judge he didn't like (The Daily Judge 05.31.2008).
In this court, if you win you get the death penalty. "Joshua Bryan didn't cry when he parted with his sheep 'Rocket' Sunday at the State Fair. The 11-year-old middle-schooler from St. Johns is one of 200 junior livestock exhibitors who brought their show animals to compete for a prize. The prize-winning animals, that included Rocket, are placed into the Sale of Champions, or auction, at the fair and eventually go to slaughter...The sixth-grader understood that he and Rocket would part ways. It's the nature of the business because it's considered a market project, said Megan Bryan, Joshua's mother...." From Boy, sheep part ways after judging at fair (Arizona Republic 10.19.2008). Comment. Boy, I guess as a small town boy who had farmer relatives and friends, I've always understood this, even though I have mixed feelings about it. To quote just about anybody, since the quote is a cliche, "It is what it is." Not sure why but it reminds me of an incident from the early 1950's, when my mom had a carpet installed by a local mortician-carpet installer and I asked the mortician-installer if he was sad when people died. He said he was: "Oh, Randy, I wish people didn't have to die. I wish I'd go broke." I'd never say the kind mortician-carpet installer wasn't telling the truth, any more than I'd doubt that Joshua's parents are good people. Similarly, I feel obliged to say I presume most lawyers and judges -- who owe their livelihood in part to the litigation explosion -- are telling the truth when they condemn, e.g., the high rates of divorce.
Judges, too, 'pay a price' in foreclosure court. "'When you take somebody out of their house, it comes with a judicial price, at least for me,' said Judge Clifford Meacham, who supervised foreclosure court from 2004 until earlier this month. 'When you take that away, it is taking away a part of people's identity.' Wearing a Looney Tunes tie loosened around his neck, Meacham, 63, narrowed his eyes. 'I know that money is important, and I really understand that banks are entitled to repossess homes. But that doesn't mean that personally I have to like it,' said Meacham, who will retire next month after about 20 years on the bench...." From 'The view from foreclosure court -- And it's not pretty as Cook County cases could top 42,000 this year' (Chicago Tribune 10.20.2008). Comment. Is this another instance of -- and I'm pausing as I utter this profound cliche -- 'It is what it is'?
Does judge need to have 'been there and done that'? "Today there is an imbalance in the representation of judges in the court system. There are no veterans who sit as judges in Cumberland County...I say -- with the number of soldiers and their families utilizing Cumberland County courts -- we need a judge who has been there and done that. Vote for Lou [Olivera]!" From 'Candidate for judge has military perspective' (Fayetteville Observer 10.20.2008). Comment. This letter to the editor reminds me of a slogan a judge I knew used when he first ran successfully for the state legislature following the Korean War. His handout read "The only veteran in the race!" The judge, who is long gone, told me about this after he retired. He added that he was never what he called "a professional veteran" and was somewhat embarrassed at having played the veteran card. A current and very young candidate for Congress here in MN is using the fact he was in the Marines and served in Iraq (good for him, I say) as the questionable centerpiece of his ad campaign. (BTW, the only candidate who is making much sense in that race -- and not tainting his legacy by the airing of nasty TV commercials -- is a third-party candidate.) The message of these ads is akin to the reasoning underlying the argument that since a Roman Catholic priest has never been married and had kids, he is less qualified to give counsel to troubled families than, say, a married Norwegian Lutheran pastor with 2.5 kids.
Retired judge's home is invaded and looted, servant is attacked. "The 28 years old servant of a retired judge was attacked and valuable goods along with considerable cash were [taken] from the judge's house here on Sunday afternoon. The incident was reported from Mohanlalganj police circle...." The judge and his family weren't home at the time. The servant was in critical condition at last report. More (Times of India 10.20.2008).
Headline-of-the-day. The headline and sub-headlines say it all: "Door thief, piglet rustler, pudding snatcher: British courts despair at extradition requests -- Warrants for 'trivial' cases double in a year -- Number of trials quadruples in two years." Gary Flood, of Scotland Yard's extradition unit, "estimated that 40% of all extradition cases dealt with by the Metropolitan police originated in Poland, adding that many of the offences were so minor they would lead to either a caution or no investigation at all in England and Wales. In one case...the Polish authorities requested the extradition of a suspect for theft of a dessert. 'The European arrest warrant contained a list of the ingredients,' Flood said...." More (UK Guardian 10.20.2008).
A 'mum's fury' at judge. "A mum has told of her anger after a 40-year-old woman escaped jail after admitting a three-month affair with a 14-year-old boy. The boy's mum angrily denied a judge's suggestion it was he who seduced the 40-year-old. And she says she wants to challenge the sentence handed [by Judge Peter Fox, QC] to Sharon Edwards who last week walked free from Teesside Crown Court, with a suspended sentence, after having the affair with the schoolboy. The youngster's mother said he was so innocent he still went to bed with a teddy bear...." More (UK Evening Gazette 10.20.2008). Comment. Coincidentally, I'm reading Vladimar Nabokov's novel, Lolita (1955), which, for what it's worth, made Time magazine's list of the best 100 English language novels published from 1923 to 2005. Having read literally hundreds of transcripts in child sex abuse cases during my 28+ years as an aide and adviser to the Minnesota Supreme Court, I still find the book, because of its subject matter (an older man's sexual obsession with a young girl), difficult going. But it's a bravely-written literary tour de force with lots of insights into human nature. Here's a permanent link to a fairly good Wikipedia entry on Lolita dated 10.19.2008.
Annals of allegedly assaultive judges. "A High Court judge may find himself in the dock following the stabbing of a motorist after a minor road accident in the city. Mr Justice GBM Kariuki is alleged to have punched a motorist, Mr Robert Kamau, and then stabbed him in the stomach on Ngecha Road in the city's Lower Kabete area. Kamau, a driver with an NGO, is undergoing treatment at the MP Shah Hospital...." More (The Standard - Kenya 10.20.2008).
Annals of judicial perks -- 14 months of paid leave. "Nobody would want to go through what Waukesha County Judge Mark Gempeler has endured in the past 1 1/2 years -- a terminally ill spouse and his own chronic back condition. But the veteran judge has benefited from a state perk that would be the envy of anyone faced with a serious personal or family illness: Gempeler has continued to receive his six-figure income from the state despite not having shown up for work in nearly 14 months...." More (Milwaukee Journal-Sentinel 10.20.2008).
The stones of the gods grind slowly. "State court records show that Montgomery County Circuit Court Judge Johnny Hardwick has a major backlog of civil cases that have not been resolved, including 125 cases that are more than five years old. Montgomery County's other five non-Family Court circuit judges combined have only 21 outstanding cases more than five years old...Of the 538 civil cases more than two years old assigned to these six circuit judges, Hardwick is responsible for 402 of them...." More (Montgomery Advertiser 10.19.2008). Comment. The judge is opposed for re-election by a Montgomery lawyer, who mentioned the backlog when meeting with the paper's editorial board. I have no idea who the voters should choose in this instance, but I think that in general the knowledge that they may face opposition in the next election tends to have a salutary effect on sitting judges, increasing the likelihood that they will perform their role properly.
The pension game some judges are playing in WVA. "A second judge running unopposed in the November election is resigning. Cabell County Circuit Judge Alfred E. Ferguson notified Gov. Joe Manchin's office that he will resign effective midnight Oct. 31. Ferguson, a Democrat, is one of four circuit judges in Cabell who is running unopposed in the general election. Ferguson has indicated to the administrative office at the Supreme Court that he intends to take office Jan. 1 if he is reelected. That means that on top of his $116,000 salary, Ferguson also could collect up to $71,920 a year in gross pension benefits bringing his total pre-tax compensation to $187,920...." More (Charleston Daily Mail 10.19.2008). See, also, Loophole grants dual paychecks to judges (Charleston Gazette 10.19.2008). Comment. This has happened in a few other states, too, but the "loophole" doesn't exist in most states. Oddly, in many states, through discriminatory forced retirement laws, judges have no choice but to retire at age 70; many of them then begin collecting, and perfectly properly, their judicial pensions and immediately go to work for big law firms. In other words, our laws lump together all lawyers 70 and older and deem them unqualified to hold judicial office due to age, but the legal marketplace, which is pretty good at setting monetary value on legal services, values their services and pays the going rate for them. But/for our idiotic mandatory retirement laws, many of these judges would remain in judicial office and there'd be a net savings to the taxpayer by virtue of the judges' deferring collecting on their pensions while at the same time postponing the system's selection of and payment of their replacements for years. For full explanation, see, BurtLaw on Mandatory Retirement of Judges.
Ex-migrant worker runs for SCOTX. "Sitting under shade trees in the vegetable fields of Illinois, a teenage Linda Yañez devoured the classics. Books took her to cultures oceans away from her hometown of Rio Hondo and introduced her to ideas foreign to many of her fellow migrant farmworkers. Four decades later, the 59-year-old appellate judge and candidate for the Texas Supreme Court compares her work now to those summer afternoons spent reading and interpreting tales of lives so different from her own. 'Every case is a life conflict,' she said. 'We can all read the same thing and read something different into it.'" More (The Monitor 10.19.2008). Comment. The nine-member Texas Supreme Court is "all Republican." Yanez is quoted saying: "'The reason that we have multi-member appellate courts is that there is supposed to be a debate among justices...We don't have that currently because all nine members are from the same political party.'" I, too, like appellate courts to be "farraginous." See, A 'farraginous' Supreme Court (The Daily Judge 06.23.2005), and Burtlaw on Pied beauty, pied lawns, pied dogs, pied politics [and pied judges] (BurtonHanson.Com - entry dated Sunday, 05.08.2005 - scroll down). But the mere fact all nine members of an appellate court are "Republicans" doesn't mean they don't debate the issues, any more than the mere fact all nine are "Nonpartisan" would mean they necessarily do debate the issues.
The KKK rally at the courthouse in Donalsonville, GA. "[A]bout 17 members and associates of the Georgia Knight Riders of the Ku Klux Klan rallied at the Seminole County Courthouse [in Donalsonville] on Saturday, drawing a crowd of more than 100 spectators, black and white, many of whom countered the Klan's message by heckling them... While the Klan rally was going on, the 29th annual Harvest Festival was happening at its new location. At the event, Donalsonville residents, black and white, wore green bracelets the city printed to reflect community unity...Brenda Broom, a local chamber of commerce spokesperson [said,] 'We're close-knit, blacks and whites work together on community events. We support each other during family crisises. And we like it that way.' That's not to say Donalsonville is perfect. Blacks and whites are still separated in the town newspaper's obits...." More (Dothan Eagle 10.19.2008). Related. Southern sheriff pulls over Obama campaign bus for broken taillight (Onion 10.17.2008). Comment. And in other places around the country people don't so much hide their idiotic and hateful racist attitudes behind white sheets but instead hide them behind coded language and bogus issues. What am I saying? I'll answer the question with a question: Have you read some of the "Have you heard?" and "Did you know?" e-mails about Senator Obama circulating on the internet?
Judge tells defendant he's 'beyond redemption.' "'Of all these thousands of people that I have seen, that I have represented, I can think of maybe only half a dozen, maybe a dozen, who were beyond redemption, for whom there was no hope,' said [Michae] Kupersmith, a judge for 20 years and a defense lawyer for 15 before that. 'And you, sir, are at the bottom of that list. You are the lowest of the low.'" The VT judge said these words as he was imposing a sentence of life without parole on one Brian Rooney for the 2006 rape/murder of 21-year-old Michelle Gardner-Quinn. More (Burlington Free Press 10.18.2008). Comment. I'm probably in the minority on this but I think that the judge should have simply and dispassionately imposed the sentence, which was mandated by VT law and which at most represents the voice of a community of mere mortals, without also attempting to speak with the voice of God. A wise man in my hometown, 50 years my senior, used to say to me that there's a bit of larceny in everyone. He also said that if you scratch the surface of a civilized man, you'll find a tiger just beneath the surface. He was as skeptical about human nature as was Justice Holmes. And, of course, he was right to be skeptical. The whole Christian religion, with its emphasis on the need for forgiveness and redemption, is based on a profound skepticism about human nature. Some of us old Norwegian Lutherans in Minnesota go a step further, believing that forgiveness and redemption are never merited or earned but given freely through something we like to call God's Grace. In this, we part company with, e.g., California's Governor Arnold Schwarzenneger, who, in denying the clemency petition of a fellow back in 2005, wrote, "[W]ithout an apology and atonement for these senseless and brutal killings there can be no redemption." This sort of statement, which reflects an unjustified self-pride by a man who is not strong but weak, makes no sense to us, for we believe a) that it is the magnitude of our sins that necessitates a great redemption and b) that redemption is never earned. Stated differently, we old-style (and "old") Norwegian Lutherans in Minnesota believe in an all-powerful and "arbitrary God" whose decision to redeem or not to redeem any one of us will not, in the words of that part-time Vermonter, Robert Frost, "bear too critical examination" by weak human judges. Robert Frost, 'The Fear of God' (Collected Poems 2002). Just as no man should assume foolishly that his own "ris[ing] from Nowhere up to Somewhere,/ From being No one up to being Someone" (Frost) is a sign of his own objective worth in the grand scheme of things, no man -- not even one of our all-too-human common law judges -- should tempt the ire of God by claiming to know that a fellow human being is "beyond redemption." No, I hear Reverend Nasheim saying during a confirmation class in the cold basement kitchen of Our Savior's Lutheran Church on a Saturday morning long ago (in the (1950s!) that all of us have fallen miserably short of the Glory of God, not one of us merits redemption, and if we are redeemed, it is by the Grace of God. But pay no attention to what I say, because I guess I'm one of those few remaining saps in this increasingly harsh society 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. Here's a link to a campaign position paper I wrote titled Crime & Punishment in connection with my failed anti-war campaign in the Republican primary for the Third Congressional District in MN in 2004. In the position paper I set forth in greater detail my politically-unpopular views on our society's essentially un-Christian, overly-harsh, and counterproductive policies on the punishment of people convicted of criminal offenses. And here's a link to 'A BurtLaw Good Friday/Easter Sermon' at BurtLaw's Secular Sermons for Lawyers and Judges.
Will judge's firing court administrator for DWI arrests 'restore faith in judicial system'? "A high-ranking court official in Warren[, MI] who was arrested three times for drunken driving was fired today by a newly appointed chief judge...New District Chief Judge John M. Chmura said he fired Conrad to restore faith in the judicial system...." The judge added, "The court administrator cannot be someone who gets in trouble with the law." More (Detroit Free Press 10.18.2008). Comment. Given all the judges who get in trouble with the law and still retain their jobs, must we strive to balance things out by firing court administrators who get in trouble with the law?
Judge as crusader/investigator. "The crusading investigative judge Baltasar Garzón opened Spain's first criminal investigation into Franco-era executions and repression with an order Thursday to open 19 mass graves, including one believed to contain the remains of the poet Federico García Lorca...." More (NYT 10.17.2008). Comments. a) Many of our American readers who aren't lawyers may be surprised to read of a crusading "investigating judge" (typically here one sees the phrase "investigating judge" in a headline like this: "FBI is investigating judge"). In our so-called common law "adversary system," the role of investigating criminal conduct and charging people with crimes is left to police and prosecutors, while the judge's role is typically said to be that of an impartial and largely passive referee who rules on evidentiary issues, decides legal questions, instructs the trier of fact, etc. But in civil law countries -- that is, countries that were not once a part of the British Empire, with its common law adverserial system -- there is a bird known as "investigating judge" who is independent of the prosecuting authorities and the ministry of justice. While most investigations are conducted by police under prosecutorial supervision, some high profile investigations are conducted by the independent investigating judge. For better or worse, some of these investigating judges are, at heart, crusaders. b) Here's a link to the biographical entry on Federico García Lorca at Poets.Org. As a starter, you might like this poem of his, 'Romance Sonambulo,' translated by William Logan.
The summons to jury duty apparently upset this woman. "An Addison woman who threatened to blow up the DuPage County Courthouse in Wheaton after being summoned to jury duty was sentenced Thursday to 100 hours of public service and put on two years of probation...." More (Chicago Tribune 10.17.2008). Comment. I'm more comfortable with this outcome than I am with the harsher outcomes I'm seeing all too often in cases around the country, cases where some person, clearly without intending to carry out the "threat," uses threatening language while blowing off steam. I expressed some of my views on this in my extended comments (with links) at an entry titled Malcolm Gladwell on zero tolerance for discretionary justice (The Daily Judge 09.01.2006). See, also, my comments of a personal nature at Four men charged with plot against federal judge in Mpls. (The Daily Judge 07.15.2008).
No, says C.J., he isn't trying to stop colleague from filing dissenting opinion. Last week a state court of appeals, sitting en banc, issued an order denying, without comment, a request by the prosecutor, Ronnie Earle, to remove Justice Alan Waldrop, who apparently formerly had political ties to former Rep. Tom DeLay, from sitting on a pending criminal case involving two of DeLay's former associates. More (Austin American-Statesman 10.10.2008). Then Justice Jan Patterson, a member of the appeals court, asked SCOTX to intervene, claiming that C.J. Ken Law, prevented her from filing her dissent to the order. More (Austin American-Statesman 10.14.2008). Now Law has responded, in a filing with SCOTX, saying "Justice Patterson was informed...that she would not be allowed to circumvent the court's circulation policy. She was also informed, in writing, that she would be allowed to release her dissenting opinion in accordance with standard court procedure. [Her] dissenting opinion is currently in circulation at the court and will be released together with any other opinions in the matter upon completion of that process." More (Austin American-Statesman 10.14.2008) and more (Austin American-Statesman 10.15.2008). Comment. Needless to say, a chief justice is, at most, "first among equals." Any justice of a state supreme court is a constitutional officer and is, of course, free to publicly dissent, in writing, from any opinion or order of the court, including, e.g., an order denying a motion to remove, an order denying a petition for review, the list goes on....
Failing economy finally hits courthouse crowd: nearby Starbucks is closed! "'It's been part of the fabric of the legal community,' said Anthony Grandinette, a defense attorney...'I've made more than a few deals over a double Frappuccino here'...'This is a place where you might see a judge, both attorneys, a juror and the defendant all in the same line for a coffee,' said Eric Phillips, the spokesman for District Attorney Kathleen Rice...." "They" are mourning the tragic closing of the Starbucks coffee shop "across Old Country Road from the [Mineola] courthouse." It's been there for five or six years. Now...it's closed, one of the 600 stores in the chain being closed because of the hard times. More (Newsday 10.17.2008). Comment. For some, I suppose, this is almost as sad as the tearing down of a beloved old courthouse. See, my essay titled The failed campaign to save a historic courthouse (The Daily Judge 03.05.2008). Although no one of the distraught regulars has asked me for my advice, I'd graciously give it to any of them freely -- in the same spirit in which, were a down-on-his-luck Edinan to ask me for $4.00 so she could buy a cup of Starbuck's coffee, I would reply, "No, but I'll stake you on some free advice." Here's my advice: Get over it. Go to the nearby Dunkin' Donuts outlet. Their designer coffee costs less, I've heard. Or, if you're one of those smart guys who sees opportunity in failure, maybe you might consider quitting your job and investing it all in one of BurtLaw's Norwegian Instant Egg Coffee ("It'll wake up the sleepiest Norwegian") franchises that are sprouting up in or around courthouses all around the country. We can't give out the secret BurtLaw Norwegian Instant Egg Coffee recipe, but here's a link (RecipeZaar) to a recipe that you can follow to make yourself some of the lesser non-instant-but-still-satisfactory Swedish egg coffee. Not really related. "Miami-Dade Circuit Judge Douglas J. Chumbley resigned Thursday after he was accused of exposing his genitalia in a Starbucks bathroom stall at the University of Miami. Chumbley, 51, is facing a misdemeanor charge of indecent exposure. He was in his final months as a juvenile division judge after losing his election bid in August. Chumbley[, while not admitting guilt,] will not fight the charge...." He'll participate in a pre-trial diversion program and, if I understand correctly, avoid a record if he successfully completes it. More (Miami Herald 10.17.2008).
Judge is reprimanded for referring to three female muggers as 'over-the-hill slappers.' "An outspoken judge who branded three [30-something] women muggers 'a bunch of over-the-hill slappers' was reprimanded for his plain-speaking outburst in London's Appeal Court. Judge Timothy Nash gave his candid description last May after watching CCTV footage of the trio attacking and robbing James McCabe, 31, as he sat on a bench drunk in Canterbury, Kent...." More (UK Telegraph 10.18.2008).
Judge who apparently was ousted by voters is sued by ex-girlfriend. "A twisted case involving YouTube, a judge, his former girlfriend, his recorded comments about a woman's 'breasticles' and the ex-girlfriend's lengthy jail stay has spawned a $2.17 million lawsuit. Julie Domotor, who was jailed for 83 days last year after capturing Palm Beach County Circuit Judge Richard Wennet's comments on videotape, sued the judge in federal court this week, claiming he improperly used his position to punish her...." More (Palm Beach Post 10.1.2008). Earlier. Third recount in FLA shows Wennet is not winner after all; Those missing ballots in cliff-hanging FLA judicial election (with links to postings about the Domotor-Wennet matters).
Annals of foolproof scientific evidence. "The Los Angeles Police Department has acknowledged in a confidential report that people have been falsely implicated in crimes because the department's fingerprint experts wrongly identified them as suspects...." More (L.A. Times 10.17.2008). Comment. I offer the following mini-essay I posted on my political opinion weblog, Sometimes Left But Always Right on Monday, 05.16.2005:
'Foolproof' evidence & the need for checks & balances -- and skepticism. One of the reasons we're involved in an unjustified offensive war in Iraq is that our representatives in Congress did not question either the reliability or the sufficiency of the evidence offered by President Bush, Vice-President Cheney, cabinet members and aides in support of their claims. Congress failed in its role partly because a majority of members of both houses are of the same party, and under de facto control by the President, who "selected" many of them to be the party's candidate (as is the case with Senator Norm Coleman of Minnesota). If they had been independent in their thinking and just a tiny bit skeptical -- i.e., if they had behaved as we have a right to believe our representaives ought to behave -- they would have refused to give the President the political support and cover he sought.
Today's New York Times Op/Ed page contains an excellent editorial titled Justice Under the Microscope, which reminds all of us -- not just politicians, lawmakers, judges, prosecutors, defense counsel, and jurors -- of the need to exercise independence in our judgments and to approach all claims that something is certain or that evidence is "foolproof" with a little Holmesean skepticism. The Times editorial follows Virginia Gov. Mark Warner's decision ordering review of over 150 capital murder convictions that were based in part on so-called "foolproof" DNA evidence developed by, as the Times puts it, the state's "once highly touted crime lab." We now know that that crime lab provided supposedly scientific but in fact erroneous evidence that DNA left at the scene of a 1982 murder belonged to a man named Earl Washington, a retarded man who police got to confess. That "confession" was, as an earlier (09.09.2000) Times story put it, "constructed of one-word 'yes' answers to a series of leading questions. The transcript showed detectives repeatedly correcting, if not coaching, Mr. Washington when he offered erroneous details..." Washington, who came within a few days of being executed, was ultimately pardoned by Gov. Warner's predecessor. Gov. Warner deserves the credit, though, for ordering an independent outside review by a scientific panel of the Virginia lab and for ordering review of the earlier cases based on what the Times calls the independent panel's "searing critique" of the Virginia lab. Further reading. See, "Foolproof fingerprint evidence?" at BurtLaw on Crime & Punishment.
Quotes-of-the-day (2 for the price of 1!). a) "It is better to fail in originality, than to succeed in imitation. He who has never failed somewhere, that man can not be great. Failure is the true test of greatness. And if it be said, that continual success is a proof that a man wisely knows his powers, -- it is only to be added, that, in that case, he knows them to be small. Let us believe it, then, once for all, that there is no hope for us in these smooth pleasing writers that know their powers." b) "Genius, all over the world, stands hand in hand, and one shock of recognition runs the whole circle round." Both quotes are from a terrific essay, Herman Melville, Hawthorne and His Mosses (The Literary World, August 17 and 24, 1850).
Annals of extra judicial perks (the best perks often are the extra ones). In California the state legislature, not the individual counties in which judges serve, determines compensation for judges. Around 20 years ago Los Angeles County began giving judges the same benefits it provided county employees, "including health benefit accounts, professional development funds and 401k programs above what they were given by the state." This amounted to an extra $46,436 in benefits per judge as of last year. Now a panel of a state appeals court has ruled, in a lawsuit filed by Judicial Watch, that this is not allowed by the state constitution because to allow it would in effect approve delegation of the legislature's duty to prescribe judicial compensation. More (San Jose Mercury News 10.16.2008).
Is the 'judicial pillar' crumbling? In an op/ed piece in The Times (of South Africa), "J Lubbe SC, Bloemfontein, former chair of the Free State Society of Advocates and former acting judge of the High Court" argues that "while the transformation of the bench" (i.e., the appointment of more black people and more women) is a priority, there is a right way to "transform" and a wrong way. Pointing to the "Hlophe debacle" and "the Motata drunken driving case" (both of which we've been following), he argues that too many "inexperienced and incompetent persons" are being named as judges of the High Court. He concludes, ominously, "The judicial pillar is crumbling and requires urgent attention and repairs." More (The Times 10.16.2008).
CJI wants to 'weed out' bad judges. "After plugging loopholes in the selection process of judges to the higher judiciary to block entry of 'black sheep,' Chief Justice of India K. G. Balakrishnan has dropped a bombshell by rolling out a mechanism to weed out corrupt, lazy and ineffective lower court judges...." More (Times of India 10.16.2008). See, also, Weed out corrupt, inefficient judges in lower courts: CJI (The Hindu 10.16.2008). Comment. While you're at it, Chief, you might set up a 'blue ribbon commission' to block judicial use of those tired old metaphors, including black-is-bad metaphors, people-as-weeds metaphors, etc. Further reading. a) A 'farraginous' Supreme Court (The Daily Judge 06.23.2005); b) Burtlaw on Pied beauty, pied lawns, pied dogs, pied politics [and pied judges] (BurtonHanson.Com - entry dated Sunday, 05.08.2005 - scroll down); c) Elizabeth Kolbert, Turf War: Americans can't live without their lawns -- but how long can they live with them? (New Yorker 07.21.2008); d) W. H. Auden, 'The Unknown Citizen' (Poets.Org).
Budget woes prompt SCOMASS Chief to say no to judicial junkets! "[Mass.] courts have imposed an immediate hiring freeze and a moratorium on out-of-state travel in addition to canceling departmental conferences. The game plan is to save the state $30 million without furloughs or layoffs, Chief Justice Margaret H. Marshall and Chief Justice for Administration and Management Robert A. Mulligan told employees yesterday...." More (Boston Herald 10.16.2008). Comment. Now, during fiscal hard times, governmental entities, including our courts, need to practice greater budgetary discipline and fiscal accountability. There is a time for writing free verse and a time for writing in sonnet form. This is a time for our public institutions and agencies to exert a little creative self-discipline in governing, the kind poets must exercise in using the sonnet form. I've said it before and I'll say it again, I've never seen a governmental budget that I couldn't cut -- and cut without reducing public service. In my experience, good government employees are team players and are willing to pitch in and work a little harder if need be -- both to keep their jobs and to keep things running -- during hard economic times. For the benefit of judicial administrators everywhere, I offer, without charge, a few of my judicial money-saving ideas at Herein of SCOMN budget woes, 'p.r.' specialists, and Thoreauvian economics. Further reading. BurtLaw's Law and Judicial Economics. Update. Law firms cut costs, with ABA dues and fancy restroom supplies first to go (LegalBlogWatch 10.17.2008).
Courthouse regulars are stunned by sudden death of 45-year-old judge. "The death of 45-year-old Broward Circuit Judge Charles 'Charlie' Kaplan stunned the courthouse Wednesday. When the judge didn't arrive for work and his assistant couldn't reach him by phone, she went to his Lauderdale-by-the-Sea home about 11 a.m. and found him unconscious. The divorced father of three young children apparently died of natural causes...." Aides described him as a "boisterous, passionate jokester" with "a knack for pulling a prank with a straight face, or mimicking singer Barry White's deep baritone." More (South Florida Sun-Sentinel 10.16.2008).
The latest in the prosecution of Judge Einfeld for 'perversion of justice.' "The Marcus Einfeld case speeds on, with bits of it falling off on to the roadway as it zooms into the blue beyond. Tuesday's judgment from the Court of Criminal Appeal...is instructive, not least because it partially lifts the veil on earlier proceedings suppressed from public view. For the good of us all, it seems to have been decided by those lower down the stare decisis chain that the less we know about these preliminary skirmishes the better. The criminal appeal judges were not so convinced about that, and quoted from an earlier suppressed decision of Justice Bruce James which gave us a little better idea of what's going on. So what is going on?" Click here to find out (Sydney Morning Herald 10.17.2008).
An interesting image: 'Lords leap to defend judges.' That's the headline of a UK Telegraph story about the release yesterday of a follow-up report by the House of Lords Constitution Committee to a report it published last year on relations of government ministers and "the press" with the judiciary. More (UK Telegraph 10.16.2008).
Witness in judge's DWI trial says prosecutor told her to lie. "A metro policewoman testifying in the drunken-driving trial of Pretoria High Court judge Nkola Motata stunned the court yesterday when she said that a prosecutor had told her to give false evidence...." More (The Times 10.15.2008). Earlier. Caught on tape! Trial of high court judge includes embarrassing tapes (with links to other entries).
'Racial spat' among judges is cleared up -- just in time. "An ugly race spat between some of South Africa's top judges has been resolved -- only hours before one of the judges involved was interviewed for a position in South Africa's Highest Court. Judicial Services Commission (JSC) chairperson Pius Langa said on Tuesday that the complaints and counter-complaints between Northern Cape Judge President Frans Kgomo and Judges Steven Majiedt and Hennie Lacock had been 'finalised.'" The JSC concluded no judge committed an impeachable offense but it "rapped [the three] over the knuckles for their behaviour. The eleventh-hour finalisation of the complaints now clears the way for Kgomo to be recommended for a position at the constitutional court and the Supreme Court of Appeal...." More (Independent 10.15.2008).
Judges to receive whopping 50% pay raise! "Members of the judiciary have received a 50 per cent increase in basic salaries for the financial years 2007 to 2009. They are to receive retroactive payments from April 1, 2007. The Independent Commission for the judiciary, which was mandated to make recommenda-tions on salary increases for judges, yesterday submitted a report to Parliament...." More (Jamaica Gleaner 10.15.2008). Comment. I wonder if some MN judges will try use the threat of moving their courtrooms to Jamaica as leverage in discussions with the legislature over their "paltry" pay.
Judge is arrested after bar fight. "Metro police arrested an administrative law judge on charges involving disorderly conduct at a downtown bar. Police affidavits state a bartender asked Anthony Adgent, 60, to leave the bar after he became disorderly Monday night. The report said Adgent argued with a barkeeper, then pushed him against a wall and struck him...." He also allegedly struck one of the people who removed him from the bar. More (Tennessean 10.15.2008).
Two can play the 'reform' game. In MN self-styled reformers are trying to get the state constitution amended to take away the voters' historic role in judicial selection. Their plan is called "the Missouri Plan," or, as I call it, "the Ozark State Plan." The plan "is used in Missouri to pick appeals and Supreme Court judges and trial court judges in Jackson, Clay and Platte counties and in the city and county of St. Louis. Rural Missourians elect their judges." Ironically, there is growing dissatisfaction in MO with the plan. Voters in Johnson County, which also uses a variant of the plan, "will be asked in November [if they want] to begin electing their judges. If the question passes, Johnson County will become the biggest county in Kansas or Missouri to elect its judiciary." More (Kansas City Star 10.13.2008). Comment. I think it's possible that the well-financed plan to bring "Ozark State reform" to MN will succeed. But I predict that, if it does, it'll be just a matter of time before there'll be a "counter-reformation" in the form of another amendment to the state constitution that will bring back direct election of judges in a way that today's "reformers" will find very, very unsatisfactory.
A judicial mind at work: 'hair judge' knows 'it' when she sees it. "For the top honor, judges were looking for a stylist that was highly creative but who could whip up styles everyday people would wear. 'That's a lot, but you know it when you see it,' said judge Mary Taylor, a stylist from Jackson...." - William R. Wood, From Hair fair: Top stylists wow judges in downtown fundraiser (Kalamazoo Gazette 10.13.2008). Comment. We've found that great judges think alike, regardless of whether the judge in question is judging a beauty pageant, an action in trover, or a state fair preserve competition. See, e.g., BurtLaw's Dog Judging, Jam&Jelly Judging, Etc. (Law and Everything Else). The only advice we can give judges of hair styling competitions is the advice we gave to Judge Patty Thomas as she prepared to be judge of the student competition at Mr. Bernard's School of Hair Fashions Inc. back in August of 2007.:
Never forget that while scientists seem to agree that hair is dead by the time it emerges from the skin, hair styling is not a dead art but a creative living art that, like all art, is capable of transforming the ordinary into something beautiful and alive, even permanent, and that it is not Clarence Thomas' or Nino Scalia's balding, crabbed "dead constitution" but the silver-locked, wonderfully-styled Oliver Wendell Holmes, Jr.'s "living constitution" of hair, in all its stylistic fullness and Olympian tonsorial glory, that you as judge -- as an honored 1977 graduate of Pierre's School of Cosmetology with years of experience in perming, coloring and styling -- are expounding. Pay attention to roots, by all means, but don't limit yourself thereby to the hair styles worn by Martha Washington and Abigail Adams. And whatever you do, don't applaud the hair styles of Nino Scalia or Clarence Thomas or Sam Alito. Holmes' style, even in hair, was better.
Some everyday examples of the 'knowing it when I see it' style of judging:
a) Potter knows a petunia when he sees it. In his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964) -- which held that the so-called "Roth test" protected all obscenity except "hard-core pornography," Justice Potter Stewart wrote, in part:
It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
As the well-known blawger Eugene Volokh pointed out in a blog posting dated 06.27.2005, Justice Stewart only "thought" he knew it when he saw it, because "after seeing enough cases, it seems that he either lost confidence in his own ability to know what should be protected, or concluded that such a test was in any event no way to run a legal system."
b) Stewart's test as 'The Casablanca test': "According to The Brethren, the law clerks that drafted the Justices' opinions created...short hand for how their bosses decided if material was obscene...Justice Stewart's Definition [was called] The Casablanca Test: '...I know it [obscenity/pornography] when I see it." In Casablanca, as a Navy lieutenant in World War II and watch officer for his ship, Stewart had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court. He called it his 'Casablanca Test'."
c) How determine if scholarship is feminist or not? See, Linda E. Fisher, "I know it when I see it, or what makes scholarship feminist: a cautionary tale" (Columbia Journal of Gender and Law 2003).
d) The economics of a 'know it when I see it' test or rule. Michael F. Ferguson and Stephen R. Peters, But I Know It When I See It: An Economic Analysis of Vague Rules (Abstract 2000) ("A vague rule reduces entrepreneurs' ability to erode the rule through loopholes by making it more difficult to predict what actions will be permitted ex post. However, because a vague rule creates uncertainty about which activities are prohibited and which ones are not, it causes a chilling effect on economic activity and introduces inefficiency into the legal system. The optimal amount of vagueness in a rule strikes a balance between the costs of loopholes, the chilling effect on economic activity, and the inefficency created in the legal system.").
e) Is 'art' something one knows on seeing? "The question of 'What is art?', inchoate in more sedate museum settings, is brought to the fore without shame or awkwardness at the Pompidou [Museum], where even the building ('like an office block that threw up on itself,' someone behind me in the line to get in said) makes one ponder the definitions and boundaries of art and architecture." -- From an entry titled "I know it when I see it" at Jenna's Model Life (10.04.2007), an interesting blog that Google caused me to stumble upon that is maintained by a young model for whom I predict success -- as a writer. (It's not that she won't also find success as a model -- it's just that I know good writing when I see it.)
f) When the Stewart test works. "Abdicating the definition of quality to 'I know it when I see it' only works when we all have the exact same values, experiences, and expectations." Tom Taormina, I Know it When I See It: The True Meaning of Quality (Informit 03.08.2002).
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.
Our Motto - "Ridentem dicere verum quid vetat" (Horace). Loose translation: Does anything prevent telling the truth with a smile?
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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.