The Daily Judge
© 2008 Burton Randall Hanson
      12.01.2008 - 12.15.2008
"All the news that gives judges and lawyers fits."
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."

About links.  a) Links, like judges, eventually retire or expire, some sooner than others. b) Access to all stories via these links is free, at least initially, although some sites require free registration. c) Free access often turns to fee access after a day or a week or some such period. d) Entries, following the typical blog format, are in reverse chronological order.

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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.

 "BurtLaw's Law And Everything Else, a Web Site produced by Burton Hanson, is part of the Library of Congress September 11 Web Archive and preserves the web expressions of individuals, groups, the press and institutions in the United States and from around the world in the aftermath of the attacks in the United States on September 11, 2001. Dates Captured: September 20, 2001 - December 17, 2001"

Some of our most recent postings. a) Is there a trick to getting SCOTUS to grant cert? b) Drunk man caught in courthouse at night says he was there to serve and protect. c) WVA judges association wants judicial elections to stay as they are. d) Two judicial candidates endorsed by gay rights group win runoff in GA. e) Judge improperly used title, prestige of office, but career as judge is spared. f) Judge, 65, 30-year-veteran jurist, is found dead in his car; gunshot wound. g) Woman who launched a rebellion against Bronx Dem. 'boss' is sworn in as judge. h) Polanski, still a fugitive, moves from afar for relief from guilty plea to sex with minor. i) Quote of the Day. j) Choosing a chief justice -- the Nevada way. k) Annals of control of the judiciary: 'controlled burn' guts courthouse. l) Herein of courthouse thermostat wars. m) Elite and 'diverse' panel of 'national' and 'esteemed' judges will judge beauty pageant! n) Annals of judicial appointment screening commissions. o) 'An Alaskan, a judge and a general walk into a bar...' p) Speaking of TV judges.... q) Model 'brawls' in court with hubby's mistress. r) 'Kentucky judge seizes control of the internet.' s) The urine-steam-inhalation defense to DWI prosecutions. t) Judge leads efforts to build $262 million skyscraper courthouse. u) The trouble with 'originalism.' v) 'New' allegations against Judge Kozinski by old foe. w) Retiring SCOMASS justice is 'no shrinking violet.' x) It's not Sheriff Wyatt Earp but Judge Craig Strong. y) Judges get 300% pay hike. z) State auditor disapproves of county courthouse's 'mowing arrangement.' aa) Car club's car show helps light courthouse at Christmas. bb) Crime and Punishment for Chuckleheads. cc) Why dogs make good judges. dd) Spending on sizzle instead of on steak. ee) Courthouse battle puts spotlight on 'initiation season' in South Africa. ff) Attorney is charged with vandalism in courthouse rage incident. gg) Restored, naked 'Lady Justice' is once again on display in courthouse. hh) Annals of gender bias. ii) Those 'commie' (or, as the case may be, 'right-wing') judicial law clerks. jj) Roseville, MI judge gets censured, suspended for DWI. kk) Judge, toppled in gambling scandal, joins state problem-gambling panel. ll) Once again you can get married in troubled Zimbabwe. mm) When law lords get transformed into justices, will it be a step down? nn) Judicial politics on federal circuit courts. oo) Judith Kaye, New Yorker. pp) On publicly humiliating would-be jurors during jury orientation. qq) The latest from those who are piling on Judge Kozinski. rr) Did Bush appoint an empathetic judge?! ss) Country crooner retires from trial bench. tt) Courthouse nativity scene ain't coming down. uu) Retiree's been doing pro bono courthouse duty for 21 years. vv) Another judge ignores BurtLaw's rule-of-thumb re contempt. ww) Court employees protest workload, magistrate judge's attitude. xx) Gary Slapper's Top 10 Weirdest Cases of 2008. yy) On lawyers' high living in hard times. zz) Annals of judicially-favored garbage bills. aaa) NY lawyer about to assume surrogate court judgeship is indicted. bbb) Feds indict ex-judge for soliciting money from lawyer with cases before him. ccc) Indicted federal judge wants polygraph results admitted at trial. ddd) When a judge touches another person -- Is it battery? Any damages? eee) Do women get away with stuff that might land men in the clinker for a long time? fff) Judge says it's not his role to investigate allegation concerning his court clerk. ggg) Judge concedes he may have 'gone too far.' hhh) Former judge's law license suspended for three months over medicinal pot. iii) Latest teen trend? jjj) Appeals court blasts judge for jailing boy who missed court dates. kkk) Rioting youths firebomb courthouse in Cradle of Western Civilization. lll) Disciplinary appeal panel says Judge Lokuta must go. mmm) Longtime SF judge, leader in gay rights, dies at 81. nnn) Former judicial law clerk is sentenced in Jesters prostitution case. ooo) Does courthouse hot dog stand present grave security risk? ppp) SCORI chief stepping down. qqq) Referees fail in getting real judges to stay handshake rule. rrr) Panel says judge erred in signing bogus order as favor for acquaintance. sss) Scottish judges oppose guidelines in sentencing. ttt) How do you solve a problem like Fitzgerald? uuu) Sol Wachtler on the job of top judge in New York.


 How do you solve a problem like Fitzgerald? In re the 12.09.2008 press conference of U.S. Attorney Patrick Fitzgerald announcing the commencement of a federal criminal prosecution of Illinois Gov. Rod Blagojevich for corruption: "Blagojevich's 'conduct would make Lincoln roll over in his grave,' according to...Fitzgerald. But Mr. Fitzgerald's statement would, at the very least, make well-regarded former Attorney General Robert Jackson flinch in his. Almost seven decades ago, Jackson admonished a meeting of U.S. attorneys that they should be dedicated 'to the spirit of fair play and decency...A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power...." Victoria Toensing, Fitzgerald Should Keep His Opinions to Himself - As in the Libby case, his behavior is 'appalling' (WSJ 12.13.2008). See, also, Barry Coburn, The Prosecution Should Give It a Rest (NYT 12.13.2008) ("Mr. Fitzgerald's expressions of revulsion, use of hyperbolic rhetoric and implicit assertion of his personal belief that the charges have merit clearly run afoul of the [ethical] rules [governing prosecutors]"). Transcript of press briefing (NYT 12.09.2008). Comment. Fitzgerald said at his over-the-top press briefing that his investigation of the governor has been "going on for years." It all reminds me of a law school prof of mine who said he had been a part of AG Bobby Kennedy's "Get Hoffa" task force, which had an unlimited budget and the sole purpose of which was to turn up evidence of wrongdoing -- any wrongdoing -- by Hoffa. More (Law.JRank.Org). It has long seemed to me that if you assembled a "Get Joe Blow Task Force," you'd probably come up with something. I base this opinion in part on my professional experience and in part on a study featured in the beginning sociology text used at the U. of Minn. in the early 1960's, a study in which a very, very high per cent of respondents, knowing their identities would be protected, admitted to having done things that, if they'd been caught and prosecuted, could have resulted in their being convicted of felonies. Archimedes of Syracuse (not Syracuse, New York), who lived from 287 B.B. to 212 B.C., said, "Give me a place to stand and rest my lever on, and I can move the Earth." Back in 2005 I said, "Give me an unlimited budget and two years to investigate, like Patrick Fitzgerald had in the investigation that led to the indictment of Scooter Libby, and I could dig up enough to prosecute anyone in particular of something or other." I say the same about Fitzgerald's mulri-year investigation of Mr. Blagojevich in Illinois. What we're seeing is "government by prosecutor," the "federalization of criminal law," and the "criminalization of politics" -- federal prosecutors with huge budgets and lots of time targeting state judicial systems all around the country, federal prosecutors prosecuting executive branch officials, federal prosecutors targeting congressmen, prosecutors running for the U.S. Senate, prosecutors running for governor (e.g., in MN), prosecutors being named judges in inordinate numbers, etc., etc. I guess, as usual, I'm in the minority, but I'm sorta sick of it all. Updates. a) Lawrence Velvel, Dean of Massachusetts School of Law, has a piece titled Re: Fitzgerald and Blagojevich at OpEd News that's worth a read. b) Here's a link to Fitzgerald's self-promoting blog, which I just stumbled across.

 Sol Wachtler on the job of top judge in New York. Good op/ed piece in Newsday (12.14.2008) by Sol Wachtler, who was the top judge himself for several years.


 Does courthouse hot dog stand present grave security risk? "The battle against terrorism hit home last week when Multnomah County decided Matlock's Hot Dogs was a 'security concern' and banished the food cart from the sidewalk outside the county courthouse. Bill Roadman, 57, has been selling dogs at the northwest corner of Southwest Fourth and Main for more than four years, but he's been ordered to move along by county officials determined to clear the sidewalk and establish a safe perimeter...." More (The Oregonian 12.12.2008). Further reading. Did hotdog stand create 'circus-like atmosphere in the courts'? (The Daily Judge 07.22.2005); Clarke County, AL courthouse is isured against attack by foreigners (The Daily Judge 12.29.2005); Security beefed up at Cedar Rapids Public Library (The Onion 10.02.2001).

 SCORI chief stepping down. "Frank J. Williams, the chief justice of the Rhode Island Supreme Court, stunned the legal community and his fellow justices yesterday when he announced that he will step down from the high court at the end of the month...." More (Providence Journal (12.12.2008). "In his eight years as Supreme Court chief justice, Frank Williams did not tread lightly. The state's top judge wielded considerable political control on Smith Hill, pushing the construction of two new courthouses, and plans for a third, while executing a 'power grab' that effectively cut the governor out of budget decisions affecting the judiciary...." More (Providence Journal 12.12.2008). Comment. All I know about RI politics is second hand, from watching episodes of the gritty, fictional TV drama Brotherhood on Netflix DVDs.

 Referees fail in getting real judges to stay handshake rule. "A Worcester [MA] Superior Court judge yesterday denied a temporary injunction sought by a group of referees who did not want to follow a new rule requiring them to...not leave the court until teams have exchanged the traditional handshake...The [referees'] main argument was that the rule would put its members in danger from fans and coaches who may be upset at calls during the game. Alan Goldberger, lawyer for the [refs], argued, 'Anyone who picks up a newspaper knows that we're living in a violent society. The rule is so absurd as to border on delusional.' The MIAA countered by saying there has never been an incident in which an official has been assaulted during a postgame handshake...." More (Boston Globe 12.12.2008). Comment. Judges sometimes compare themselves to referees, and vice-versa. For links to multiple postings in which I point out that this kind of talk is, to use Mr. Goldberger's words, "so absurd as to border on delusional," see, Judge running for city attorney tells opponent his notion of judge as tennis referee is absurd (The Daily Judge 10.25.2008).

 Panel says judge erred in signing bogus order as favor for acquaintance. "Pennsylvania's judicial ethics panel has ruled that a Philadelphia judge acted improperly when he issued a bogus protective order as a favor to a Romanian diplomat more than three years ago. Municipal Judge James M. DeLeon let friendship influence him when he signed a 'stay away order' that he did not file, docket or make part of any official order, the state Court of Judicial Discipline said Wednesday...." Judge DeLeon's attorney says he'll seek review of the panel's decision. More (Lehigh Valley Express Times 12.11.2008).


 Scottish judges oppose guidelines in sentencing. "Judges and sheriffs have criticised Scottish Government plans to establish guidelines for the sentencing of offenders...." More (BBC News 12.12.2008). Comment. It seems judges are as susceptible as other people to fashion and fad -- whether the fad be a) sentencing guidelines, b) mandatory continuing education for lawyers and judges, c) mandatory attendance by lawyers and judges at didactic seminars on the subject of diversity, d) mandatory contribution by lawyers to programs providing emotional and psychological support to lawyers suffering from alcohol or drug dependence or depression, e) the adoption of judicial "mission statements" (a fad that apparently began in the business world with companies like Enron, which had a very fine mission statement, indeed), f) the holding of court sessions in the public schools, g) expensive "retreats" at corporate conference centers, h) the establishment of specialized courts such as drug courts, i) attempts to give judges and the bar associations greater say than they already have in the selection of judges -- the list goes on. Thomas Wolfe. the great American novelist (1900-1938), who wrote Look Homeward, Angel and You Can't Go Home Again, wrote, perceptively, "She who is whored by fashion will be whored by time." There are some students of the judiciary who believe that the courts are in danger of, well, not being "whored" by fashion but let's say of being too concerned with being fashionable or "new" or "cutting edge," of forgetting why we have courts and judges. In a tribute to Edwin Arlington Robinson after his death, Robert Frost wrote: "It may come to the notice of posterity...that this, our age, ran wild in the quest of new ways to be new....Robinson stayed content with the old-fashioned way to be new." Our judges could do worse than "stay content with the old-fashioned way to be new." I hear a judge say, "What are you talking about?" I reply, "That you have to ask suggests the scope of the problem." Sometimes I think ordinary people have a better understanding of the proper role of judge than most judges do.... As for sentencing guidelines, we adopted them in Minnesota in the 1980's. Based on an intimate familiarity with them, I ultimately became disappointed with them. In my opinion, the old system of broad judicial discretion and indeterminate no-minimum-term sentences, with probation determined by a professional parole board, was a more humane and more effective system. For more on my views on sentencing, see, comments and links at Imprisoned judge rethinks crime & punishment. I've basically been a "bleeding heart" opponent of harsh sentencing laws all my life and I've never been ashamed of holding these views, although I've not always been free to express them. Here's a link to a campaign position paper on Crime and Punishment I posted on my campaign website in my 2004 anti-Iraq-war campaign against entrenched incumbent Republican Congressman Jim Ramstad.


 Gary Slapper's Top 10 Weirdest Cases of 2008. "An unusual case in Italy rested on an allegation of double trouble: identical twin sisters were prosecuted for a long-running scam in which one allegedly filled in for the other at work. Gabriela Odisio, a lawyer and part-time judge from Magenta, allegedly used her sister Patrizia to impersonate her when she was double-booked, allowing her to draw fees for being in two places at once. The sisters managed to fool everyone for three years, prosecutors said. Their ruse was only discovered after they were overheard discussing their plans by a client...." That's #7. The other nine may be found here (UK Times 12.11.2008). Need weightier stuff? Gary Slapper, Part I of The cases that changed Britain: 1785-1869 (UK Times), with the original Times reports and links to the four subsequent parts in the series.

 On lawyers' high living in hard times. "Which major City firm partner regretted letting a female client sit on his lap at a party when she drunkenly relieved herself on his trousers? The next day he received an email from the blissfully unaware individual thanking him for a lovely evening...Which US firm managing partner's hotel check-out led to an awkward silence with a prudish female colleague when the desk staff queried his £400 in-room adult TV bill? He had cycled through all 48 movies to get back at a troublesome client, whom he mistakenly thought was footing the bill...." From Frances Gibb, Lawyers indulge love of high living despite credit crunch -- The annual Legal Business Christmas issue exposes sex and debauchery at some of the UK's best-known law firms (UK Times 12.05.2008).

 Annals of judicially-favored garbage bills. Pay raise for judges tucked into auto bailout plan (Yahoo News 12.11.2008). Update. Sen. Claire McCaskill on backdoor attempt to raise judges' pay. "'Wrong time. Wrong place,' McCaskill said of the judicial pay provision. 'We have unemployment numbers today that are the highest unemployment in this country that we have had in decades. We have families all over this nation that are scared today, that aren't buying Christmas presents. Federal judges get lifetime appointments and they never take a dime's cut in pay. They die with the same salary they have today. And my phone is ringing off the hook, Mr. President, from people who want to be federal judges.'" More (KC Star Prime Buzz 12.12.2008).

 NY lawyer about to assume surrogate court judgeship is indicted. The allegations supporting the felony charges are that Seth Rubenstein, "a lawyer who was [candidate Nora] Anderson's boss, friend and campaign adviser," deposited $250,000 into her campaign account and she officially reported the deposit as being a loan of her own funds to the campaign. "Surrogates' courts are no strangers to scandal. In 2005, Michael H. Feinberg, a surrogate in Brooklyn, was removed after the State Commission on Judicial Conduct found that he had awarded $8.6 million in legal fees to a friend without verifying that the friend had done the work. Judges in surrogate's courts, as the handlers of wills, estates and guardianships, have the power to appoint lawyers to lucrative cases...." More (NYT 12.11.2008). Comment. Judicial candidates should do as I did in my campaign in 2000: refuse all endorsements and contributions, not just from lawyers but from everyone else, too, and limit their expenditures, as I did, to under $100. See, my archived campaign web site/campaign blog. Hey, I lost but I presumably would have even if I'd spent big bucks. My opponent, a fine woman who was appointed to the office and was seeking a full six-year term, had a war chest of over $100,000 (big by modest, low-key MN-nice standards) and endorsements from tons of lawyers and politicians. Not sure how much she spent but she'd presumably have won even if she'd conducted an equally bare non-campaign.

 Feds indict ex-judge for soliciting money from lawyer with cases before him. The ex-judge is 65-year-old Thomas Spargo, who was a NY state trial judge in 2003 when he allegedly pressured the lawyer to give him $10,000. He was removed in 2006. More (Newsday 12.10.2008). Further reading. 2006 Ruling of NY State Commission on Judicial Conduct.

 Indicted federal judge wants polygraph results admitted at trial. "Prosecutors cast doubt Wednesday on two lie detector tests that [Judge Samuel Kent,] a federal judge indicted on sexual abuse charges[,] is trying to get admitted into his trial, saying they were riddled with errors and that the man who performed the polygraphs has himself failed such a test...." More (Houston Chronicle 12.11.2008). Links to earlier Daily Judge postings on Judge Kent. See, especially, Of 'insects coming out of the woodwork,' of 'piling on,' of Tom Jones, etc. Update. Judge won't let Judge Kent use his polygraphs but leaves door open to new test (Houston Chronicle 12.12.2008).

 When a judge touches another person -- Is it battery? Any damages? "[Lisa Margaret Smith, a chief U.S. magistrate judge for the U.S. District Court for the Southern District of New York, claim[ed]...that she was 'blinded' by a campfire [and] she accidentally touched, rather than punched, another woman's face during a 2006 incident on Grindstone Island...Julie L. Purcell, Jamesville,...claimed the judge 'sucker punched' her in the face...." More (Watertown Daily Times 12.10.2008). Verdict? A jury concluded the judge committed a battery but it awarded plaintiff no damages. Plaintiff claims vindication, saying the suit wasn't about the money. Full report (Watertown Daily Times 12.11.2008).


 Do women get away with stuff that might land men in the clinker for a long time? The other day a NH judge, Robert Lynn, sentenced a woman to 2-4 years in prison for having sexual relations with a boy who was 15 years old, twenty years her junior, three years ago.The prosecutor wanted 8.5-21 years. In imposing sentencing, the judge said, inter alia, "Like it or not, an underage boy having sex with an older-aged girl is viewed differently than the other way around." After saying he weighed defendant's victimization of the boy against the boy's aggressive pursuit of defendant, the judge added, "Young men have raging hormones. It doesn't make him a bad person." More (Union-Leader 12.10.2008). As you might expect, some people are ripping the judge for the "light" sentence and his remarks. More (Boston Herald 12.11.2008). Comments. a) The judge should have simply and dispassionately imposed the sentence without saying more. It's BurtLaw Rule of Thumb #756, or some such number. It's always in saying "more" that a judge gets his foot in his mouth and winds up getting attacked by this group or that. As Retired Judge Douglas Albright said the other day, "Things have changed. I tell the newer judges not to cackle in the nest. In this day and age, it's probably wise to just do what's required and leave it at that." Quote of the Day, following Father and son, judging in the same courthouse on the same day (The Daily Judge 11.16.2008). b) Was the good judge just telling it like it is in saying "Like it or not, an underage boy having sex with an older-aged girl is viewed differently than the other way around"? Consider this report: "A former Middleton High School teacher got probation instead of prison Wednesday for having sex multiple times with one of her special education students. The judge who sentenced Christina Butler said the victim, then 16 and borderline mentally retarded, was probably the more mature and less vulnerable of the two. 'Perhaps he initiated it,' Hillsborough Circuit Judge J. Rogers Padgett said...." More (St. Petersburg Times 12.11.2008).


 Judge says it's not his role to investigate allegation concerning his court clerk. "Wayne County Circuit Judge David Groner said Wednesday that an investigation into whether his courtroom clerk may have tried to use her position to arrange special meetings with her jailed son is 'not my issue.' Sheriff Warren Evans is investigating whether the clerk, Benita Bell, 46, arranged meetings with her jailed son, Davon Bell, 18, with the help of deputies...." More (Detroit Free Press 12.11.2008). Comment. The headline says, "Wayne County judge not probing sheriff's questions about his clerk." Might the judge possibly compromise his role as judge if he himself "probed," as the paper's headline puts it, his clerk's conduct in these circumstances? I think so.

 Judge concedes he may have 'gone too far.' "On third thought, Wayne County Probate Judge David Szymanski has concluded maybe it wasn't a great idea to jail [Diane Anderson] for writing about her court case on a Web site...and order[ing] the site to be 'shut down immediately'...Now, with yet another hearing on the matter set for this morning, he concedes he may gone too far. 'I needed some more time to think about it,' Szymanski said in an interview. The site -- www.davidcarlandersonandelderabuse.com -- which contains commentaries on the case and Anderson's family, was disabled Wednesday...." Anderson is battling her brother in probate court over care of their elderly mother. More (Detroit Free Press 12.11.2008). Comment. Memo to judge: See, U.S. Const. am 1.

 Former judge's law license suspended for three months over medicinal pot. "[Martha Davis, 62, of Windsor, a] former part-time family court judge in White River Junction[,] has lost her license to practice law for three months as a result of disciplinary action against her after state game wardens found more than two pounds of marijuana at her home last year...." More (Rutland Herald - VT 12.11.2008).


 Latest teen trend? "[L]atest teen and young adult craze: using cell phones, usually girls to boyfriends, to send nude or semi-nude pictures of themselves. One in five teens is doing it, reports the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com. And one in three have seen pictures sent to boyfriends that -- whoops -- mysteriously wound up on cell phones of the football, basketball and baseball teams. Basically, the entire school...." More (Boston Herald - Margery Eagan 12.11.2008). Comment. Another "trend" is that more and more women, including older women, are voluntarily posing in the nude for their husbands or boyfriends, or taking nude pictures of themselves, and posting them -- or agreeing to their posting or finding out to their regret that they've been posted in revenge -- on homemade amateur porn websites. The day will come, I'm sure (sooner rather than later), when some judge or court employee or politician or other public figure will find to her embarrassment that old Polaroids or digital pics or videos of this ilk have been posted to some homemade amateur porn website. And my gallant response will be to say to everyone who's horrified, "Calm down, leave her alone." Update. Ohio juvenile court judge tells teens sending nude pics via cellphone can be a felony and might land them in 'juvenile prison' (Cleveland Plain Dealer 12.12.2008). Comment. I'm not sure that trying to scare teens will work. (Well, maybe in Ohio it will.) I think if we're going to talk to teens about the legality of something like this, we ought to present a balanced, fair, and accurate, not an incomplete and exaggerated, "picture." Without specific reference to the judge in question (who undoubtedly has kids' best interests at heart), I merely point out that there is, indeed, a First Amendment aspect to sending self-pictures and other pictures via cellphone to other people and judges ought to take great care not to confuse public understanding of that by making overbroad statements in their legal sermonizing to teens about the legal risks of engaging in this fad. BTW, Lady Justice is a nude woman.


 Appeals court blasts judge for jailing boy who missed court dates. "Declaring that ''no person, not even a judge, is above the law,'' an appeals court Wednesday blasted a Miami-Dade juvenile judge for improperly jailing a youth who repeatedly failed to appear in court. The opinion marks the 12th case in which the appeals court has reversed veteran Miami-Dade Circuit Judge Lester Langer for ordering 'an uncooperative juvenile' into Miami's juvenile lockup without the authority to do so, the opinion states. The previous 11 cases all occurred within the last three years...." More (Miami Herald 12.11.2008). Further reading. A lawyer recalls a juvie judge he didn't like (The Daily Judge 05.31.2008).

 Rioting youths firebomb courthouse in Cradle of Western Civilization. "Hooded youths attacked the Athens courthouse with firebombs Wednesday and a general strike by labor unions shut down most of the country as nationwide urban unrest entered its fifth night...." More (LAT 12.11.2008). Comment. If it can happen in Athens, said by many to be the Cradle of Western Civilization and the Birthplace of Democracy (something some Scandinavians might dispute), it probably can happen any old place.

 Disciplinary appeal panel says Judge Lokuta must go. "A county judge was stripped of her office Tuesday in the longest and most costly judicial ethics investigation in state history. The Court of Judicial Discipline also banned Luzerne County Common Pleas Judge Ann H. Lokuta from holding any state judicial office in the future...." Lokuta will appeal to SCOPA. More (Philadelphia Inquirer 12.10.2008). Links to our prior postings.

 Longtime SF judge, leader in gay rights, dies at 81. "Herbert Donaldson, a retired Superior Court judge who was widely known in San Francisco for his role in gay organizations long before it was either acceptable or fashionable, and for his tenure as one of the city's more compassionate and community-oriented jurists, died Friday at his home in San Francisco, surrounded by his friends and his three cats. Judge Donaldson, who was 81, died from the effects of pancreatic cancer, according to his longtime friend and companion Louise Swig...." More (S.F. Chronicle 12.10.2008).

 Former judicial law clerk is sentenced in Jesters prostitution case. "A former State Supreme Court official[, Michael R. Stebick,] who used his motor home to transport an illegal alien prostitute from Hamburg to Kentucky was sentenced to four months of home confinement today by a federal judge...." Stebick, who was a law clerk for state trial judge Ronald H. Tills at the time, drove the woman and some Jesters club members to a club conference. Tills pleaded guilty and is awaiting sentencing. More (Buffalo News 12.10.2008). Earlier. See, our detailed posting Retired judge admits recruiting prostitutes for Royal Order of Jesters party (The Daily Judge 09.05.2008).

 Crime and Punishment for Chuckleheads. Clyde Haberman has an amusing and provocative essay in the NYT (12.09.2008) comparing the possible harsh punishment for NY Giants wide receiver Plaxico Burress for illegal possession of a firearm (with which he accidentally shot himself) and the five days in jail given Congressman Vito Fossella for DWI. Comment. One might also compare the harsh punishment meted out to O.J. Simpson for his role in the notorious "armed robbery" in Las Vegas with the punishment given his co-conspirators and that given other first-time offenders convicted of the same offense. The sentencing judge said, apparently with a straight face, that she didn't consider Simpson's possible actual guilt in the killing of his ex-wife, a crime of which he was acquitted. And we are asked to believe Simpson's supposed guilt of that offense wasn't taken into account in convicting him. I don't know whether he got a fair trial or whether the sentence in fact was either justified or appropriate. All I can say from this distance is I'm a Holmesian skeptic and await with interest the results of Simpson's appeal(s).


 Why dogs make good judges. As all dog owners know, dogs have an inherent sense of fairness. It didn't take a study to prove it, but some Austrians have reported that their study shows that "a dog may stop obeying a command if it sees that another dog is getting a better deal." With treats, dogs seem to know what's fair (NYT Science Tuesday 12.09.2008). Further reading. Here's an excerpt from a 2002 posting at BurtLaw's Law and Animals asking "What would equal protection for dogs mean?":

Dogs already work in police departments, for the military, on farms, in movies, on television, as guides, in retirement homes, in circuses, at golf courses. Dogs who work don't get paid (unless one counts the Purina Dog Chow and the L.L. Bean bed and the cloth squeaky bear, Mathilda's favorite toy, as "payment") and don't receive any so-called employment benefits (well, some get to sleep with the boss), and yet dogs have never sought to form unions and they're always happy and cheerful on the job. No reasonable person would doubt that dogs would perform similarly smilingly as lawyers, legislators, judges, governors, even as clerks at McDonalds. But one can only speculate as to what they would do in those positions. If dogs gain political and economic power, will they stop wagging their tails? Will they make us sleep on the floor, eat out of a bowl, stand on our heads, chase tennis balls and flying discs, and carry our own waste in plastic bags attached to our collars as we run around the lake? Will they "put us to sleep" if we become incontinent? In short, will they treat us like dogs? "So what?" one might reply. Many of us, yours included, have been treated like dogs by certain bosses. Would it be worse if a dog treated us like a dog?...And as for the other stuff, heck, most human beings, even self-professed Christians, seem to have few or no scruples about incarcerating their brethren for excessively long periods of time under brutalizing conditions, about locking up old folks against their wills in nursing homes, about "pulling the plug" on incontinent old people, or about executing criminals (including lawfully-convicted "criminals" like Jesus Christ). Hell, I find it hard to believe we'd have anything to worry about if the Mathildas of the world were "in charge." But, and this is important, if we extend equal protection to chimps and dogs, we have to find a way -- in advance -- to counteract the argument that silly cat lovers surely will make, to wit, that cats are people, too.

Further reading. Lady Mathilda's Law and Dogs; BurtLaw on Dog Judging, Jam'n'Jelly Judging, Etc.; The courthouse dog -- or what are dogs up to? (The Daily Judge 03.19.2006) (asking, inter alia, If dogs can run naked on the beach, why can't women?); Burtlaw on Pied beauty, pied lawns, pied dogs, pied politics [and pied judges] (BurtonHanson.Com - entry dated Sunday, 05.08.2005 - scroll down); The supreme court traveling dog'n'pony show (The Daily Judge 09.20.2005); Mathilda (1995-2007).


 Spending on sizzle instead of on steak. "The events are not related and the comparison is hardly apples to apples, but the irony is too great to ignore. At the same time that [NH's] liquor commission is defending its use of $422,000 in federal funds to purchase and outfit a mobile command center to facilitate DWI arrests and convictions, the state's judicial system is suspending jury trials in civil cases and instituting a freeze on filling vacant judicial positions...." More (Concord Monitor - Editorial 12.09.2008).

 Courthouse battle puts spotlight on 'initiation season' in South Africa. "[Judge Jean Nepgen,] presiding over a contentious circumcision case that pitted a father against his son[,] stormed out of proceedings yesterday ...order[ing] the defence counsel to give the complainant Bonani Yamani and his father, Lindile, time to settle their differences. Bonani, a devout Christian, took his father and the Eastern Cape House of Traditional Leaders to court, demanding an apology from both of them after he claimed he was forcibly sent to initiation school in 2007...He claimed he was forcefully circumcised after his father and about 10 other men abducted him in the early hours of March 3, 2007...." More (Daily Dispatch - South Africa 12.09.2008). Earlier. Circumcision - female bad, male o.k.? (BurtLaw's Law & Kids 03.08.2002) (scroll down). Further reading. Male circumcision in South Africa ("In South Africa, every year, young abakwetha (Xhosa: male initiates) are hospitalised or die from circumcision wounds undergone during traditional initiation rites. Ritual circumcision under some circumstances can put young men at risk of contracting STDs, HIV/AIDS and other blood-borne infections."); Ritual circumcision in South Africa ("South Africa's initiation season ended this weekend with a gruesome toll of 24 deaths reported to police and more than 100 teenagers hospitalised with gangrene and septicaemia after botched circumcisions and severe beatings" - quoting a 2002 news report). Compare and contrast. Queens man files libel suit against Jewish history center, alleging it falsely reported he'd not been circumcised (NYT - City Room Blog 12.08.2008).

 Attorney is charged with vandalism in courthouse rage incident. "A Greeneville attorney has been charged with vandalism under $500 in connection with a Nov. 25 incident at the Greene County Courthouse. A criminal summons...allege[s] that...Santore was in the Circuit Courtroom when he became 'irate' and threw a coffee cup across the courtroom before 'cursing loudly' and leaving the courtroom. Once outside the courtroom, according to the criminal summons, Santore pulled a railing from a stairwell wall, causing an estimated $30 in damage...." More (Greeneville Sun 12.09.2008).

 Restored, naked 'Lady Justice' is once again on display in courthouse. "Justice may be blind, but in San Antonio it's naked, too. A restored 4-foot blindfolded Lady Justice statue in a fountain was on display Monday in front of the Bexar County Courthouse." The statue and fountain were vandalized in 1997...Restoration was led by sculptor Gilbert Barrera, who says that in Greek mythology, 'bareness and naturalness were a sign of purity, goodness and justice.'" More (Houston Chronicle 12.08.2008). Further reading. See, my comments on nude art in courthouses, capitols, etc., at Legislator wants capitol murals covered up -- he 'don't like 'em' (The Daily Judge 01.11.2007). Cf., Judge dismisses indecency charge against nude protester, with extensive comments (The Daily Judge 09.23.2005); Oo-ee, oo-ee baby, won't you join the judgie on a nude sea cruise? (The Daily Judge 10.31.2006); Courthouse Girls -- big hit at film festival (The Daily Judge 06.16.2008). Comment. Not necessarily relevant but what the heck: My main judicial hero, Justice Holmes, enjoyed risque burlesque shows, pretty women, and racy French novels. When he was eighty and spotted a pretty woman, he said, "Ah, to be seventy again!" He was heard to say on more than one occasion, relating to his interest in burlesque shows with scantily-clad female dancers, "I thank God I'm a man of low taste." So I say, when you see a depiction of Lady Justice as nude, think of Her robed male counterpart, the Olympian Holmes.

 Annals of gender bias. "Even as the controversy over Ms. Palin's makeover continues -- controversy that many of her defenders said would not surround a male politician -- it remains unclear exactly how the transactions occurred and who made the purchasing decisions." 3 Palin Stylists Cost Campaign More Than $165,000 (NYT 12.06.2008). Compare and contrast. John Edwards embarrassed about $400 haircuts (Washington Post 04.20.2007).

 Those 'commie' (or, as the case may be, 'right-wing') judicial law clerks. "A new study in the DePaul Law Review claims to show that the political leanings of law clerks do influence the votes of Supreme Court justices. The study is based on information about political party affiliations collected from more than 500 former clerks, and on standard measures of judicial ideology...." More (NYT 12.09.2008). The study is Todd C. Peppers and Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Asseessment (Depaul L. Rev. 2008). Comment. Justice William O. Douglas once candidly admitted to Eric Sevareid in a TV interview, irking his colleagues in the process, that "We don't need law clerks." Despite that, most appellate judges and a lot of trial judges hire recent law school grads as law clerks. SCOTUS justices typically have four law clerks each. Might judges, in these hard times, do without so many law clerks and other aides? See, our comments at a) Retiree's been doing pro bono courthouse duty for 21 years (The Daily Judge 12.06.2008),
and b) Is there a trick to getting SCOTUS to grant cert? (The Daily Judge 12.05.2008).


 Roseville, MI judge gets censured, suspended for DWI. "A Roseville district court judge[, Catherine Bove Steenland,] will be [censured and] suspended for 90 days without pay following her conviction of operating a motor vehicle while visibly impaired last summer in Ogemaw County...." More (Detroit Free Press 12.09.2008). Comments. a) In some (misguided) jurisdictions a judge may be removed from office for a DWI offense. In such jurisdictions, there is a great incentive for a judge to do what he can to avoid a conviction. In more sensible jurisdictions, like Minnesota and, apparently, Michigan, a judge arrested for DWI typically pleads guilty quickly, often at the first available opportunity, & takes her medicine. See, e.g., Minnesota judge pleads guilty to DWI (The Daily Judge 06.16.2005). b) 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. By refusing to submit to required testing, a judge who's driven while under the influence in a sense is compounding the problem by disregarding another requirement of the law. c) BTW, I come across stories just like this one out of MI all the time. Judges seem as prone as other people to driving after drinking. I have a sense -- and it may be unjustified by actuality -- that female judges get nabbed for this out of proportion to their numbers in the judiciary. If true, there are a number of possible explanations other than that female judges are more likely than male judges to drive after drinking. d) To judges everywhere, in all jurisdictions, I offer you something of value that is not a bribe, a Christmas gift of advice. Let's call it 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. Update. Fort Worth Judge Berry challenges admissibility of blood test results in her DWI prosecution (Fort Worth Star-Telegram 12.10.2008).

 Judge, toppled in gambling scandal, joins state problem-gambling panel. "A disgraced former Municipal Court judge in Kansas City[, Deborah A. Neal,] who was toppled in a gambling scandal has been named to a state oversight panel for problem-gambling assistance programs...." More (Kansas City Star 12.09.2008). Earlier. Judge with gambling problem pleads guilty to mail fraud (The Daily Judge 05.04.2005); State judge sentenced to prison for federal mail fraud (The Daily Judge 09.30.2005).

 Once again you can get married in troubled Zimbabwe. "Harare and Chitungwiza courts, which ran out of marriage certificates in October, have resumed the business of marrying couples after the acquisition of the stationery last month. Although the courts had plenty of marriage licence forms in stock, couples wishing to get married had to seek the services of pastors who still had certificates...." More (The Herald - Zimbabwe government newspaper via AllAfrica 12.09.2008). Comment. If your head has been in the sand and you haven't been reading the news or our criticisms of the policies of Zimbabwe's dictator, Robert Mugabe, since we began blogging back in 2000, here's a link to Wikipedia's dummies guide to Zimbabwe. The short of it all is that Zimbabwe, formerly white-controlled racist Rhodesia, used to be the bread basket of Africa. But in a reverse-racist populist policy, Mugabe & Co. confiscated the land of the productive white farmers, drove most of the whites out of the country, and divvied up the land among Mugabe's allies and others. Now Zimbabwe is suffering from food shortages, cholera and hyperinflation -- not to mention a host of other problems such as lack of basic freedoms.

 When law lords get transformed into justices, will it be a step down? Joshua Rozenberg, Supreme Court inferior to Lords, some judges say -- In an unprecedented joint interview, two senior judges who will be joining the UK Supreme Court next year reveal that one or two of their fellow justices think we would be better off without it. Might it be something to do with the post code? (UK Telegraph 12.08.2008). Excerpts: Lady Hale on moving out of Parliament to a renovated Middlesex Crown Court on Parliament Square: "All the legislators [in Parliament] are running around doing legislation and we, of course, are walking slowly, in a dignified fashion, to go to our completely different job in the committee room. I would much prefer it if we were seen to be a court and given the appropriate facilities to be a court." Lord Hope on whether they will get their own building: "The one area where I think we are in a somewhat perilous situation is funding. [Being part of Parliament is] quite a strong protection against executive pressure. [Now w]e will be dependent, to quite a large extent, on money coming to us through the Ministry of Justice."


 Judicial politics on federal circuit courts. "Although the impact of Bush's judicial appointments is most often noticed at the Supreme Court, it has played out much more frequently and more importantly...in the nation's [13 circuit or] appellate courts, where his appointees and their liberal counterparts are waging often-bitter ideological battles. After Bush's eight years in office, Republican-appointed majorities firmly control the outcomes in 10 of these courts, compared with seven after President Bill Clinton's tenure. They also now share equal representation with Democratic appointees on two additional courts...." The politics of the federal bench - Ideological warfare rages on federal appeals courts dominated by Republicans (Washington Post 12.08.2008). See, also, A bench more white, male, conservative (Washington Post 12.08.2008); The politics of the federal bench - Obama's appointments are expected to reshape the U.S. legal landscape (Washington Post 12.08.2008).

 Judith Kaye, New Yorker. The 12.15.2008 issue of The New Yorker has a "lite" piece by Jeffrey Toobin on Judith Kaye, the outgoing chief judge of NYS' top appellate court, and her successful efforts to eliminate jury exemptions for everyone, including lawyers and judges, and improve the quality of the experience for those who serve as jurors.

 On publicly humiliating would-be jurors during jury orientation. Marissa Litman, An Exercise in Public Humiliation (BeyondChron - San Francisco 12.08.2008). An ESL teacher, using vivid examples, describes the humiliating spectacle of subjecting  would-be jurors at juror orientation to detailed public questioning about their English language skills; she explains why she supports private questioning of those who say they may have a problem understanding English.

 The latest from those who are piling on Judge Kozinski. The LAT has another supposed "shocker" in the series of revelations that I guess are supposed to shock us. The latest? Until recently, Judge K. maintained an "Easy Rider e-mail gag list" of "friends and associates, including his law clerks, colleagues on the federal bench, prominent attorneys and journalists" to whom he forwarded jokes that were "silly to politically oriented to raunchy." More (LAT 12.08.2008). Previous postings. 'New' allegations against Judge Kozinski by old foe (The Daily Judge 11.29.2008); Sir Burton rises to defend Chief Judge Kozinski over porn postings (an in-depth posting/analysis that is immediately followed by "Updates on Kozinski mess" and "The Blawgosphere's take on Kozinski" (The Daily Judge 06.10.2008).

 Did Bush appoint an empathetic judge?! "Christine Arguello grew up poor, the daughter of a railroad worker whose family lived for a time in a boxcar. She went on to be the first person in her family to attend college then graduated from Harvard Law School before becoming Colorado's chief deputy attorney general, professor and partner in a law firm. On Friday, with her family, friends and mentors looking on, she had her formal investiture ceremony for her new post as U.S. District Court judge...." More (Rocky Mountain News 12.06.2008). Comment. Some radical right-wingers and others have been hopping all over President-elect Obama for saying he plans to appoint as federal judges lawyers who are "empathetic" to the plight of ordinary folks, poor people, etc. Apparently President Bush never did that. But wait! According to the story, "Arguello,[ who is a Bush appointee but who also presumably is aware of what Obama's been saying,] said she believes that her background will make her more understanding and empathetic to the 'common man' and attorneys who appear in her courtroom." OMG!

 Country crooner retires from trial bench. "'I'm breaking rocks in the hot sun, I fought the law and the law won,' [Judge John] Walker crooned Friday near the end of a retirement reception held in the [Franklin County, PA] courthouse's jury assembly room. 'When I have someone with a DUI (driving under the influence), I'll tell them, 'If you drink and drive, do the watermelon crawl.' Walker is retiring Jan. 2 after more than two decades on the bench...." More (Chambersburg Herald-Mail 12.07.2008). Comment. We've often wondered: Is there a correlation between crooning ability and ability to serve as common law judge? We like to croon (typically a tune...from the Heart of Dixie) and we suspect there is such a connection.


 Courthouse nativity scene ain't coming down. "The blonde-haired angel is going to stay on the county courthouse lawn for several more weeks, as are the other wooden figurines representing Jesus, Mary, Joseph, a shepherd, a camel, four lambs and a ram. 'The nativity scene has been there for two weeks, and will come down around Jan. 10,' County Executive Bob Ziegelbauer said Friday of the display erected each Christmas season by the Manitowoc County Catholic Woman's Club and Knights of Columbus...." More (Herald-Times - WI 12.07.2008). Comment. This has been an issue in Manitowoc every year for a number of years. Some people are publicly objecting. Even some Catholics reportedly object but are afraid to do so publicly. But no one as yet has filed suit. Here are a couple relevant postings of ours from a few years back:

 a) How Huntington almost 'lost' Christmas - or, judge as hero. "Huntington [CT] officials worked all night readying staff for the coming snow, but instead they woke up to a different storm Friday: a local lawyer [Mitchell Pashkin, 39] sued [in federal district court] to remove a nativity scene from the town's public lawn and stop Friday's Christmas tree-lighting ceremony. [Pashkin claimed] the nativity scene, Christmas tree and two signs on the Village Green that read 'Peace on Earth' violated his constitutional rights because of their religious overtones. The display [also]...included a menorah, which Pashkin [said] was 'dwarfed in significance and stature' and 'appears as nothing more than a token attempt to be inclusive to the Jewish population.'" Enter a hero: "Judge Leonard Wexler helped broker a compromise between Pashkin and the town Friday afternoon...The deal calls for the town to put up large signs stating the nativity scene was donated by Huntington's Knights of Columbus[,]...that the menorah came from the Chabad-Lubavitch in Melville...[and] that the nativity scene and the menorah are not town property." (Newsday 12.10.2005). Comment. And there descended, along with the fluffy light snow, a sighing calm, covering the entire city, which from that day forward never again knew turmoil of any kind.

 b) No more poinsettias in halls of federal courthouse! "The past few weeks, visitors to the U.S. District Court building have been treated to a hapless display of irises, primroses and other spring flowers. Why spring flowers in the dark of winter? It was a rush replacement. For what has been there in winters past -- dozens of bright-red poinsettias...Yep, you guessed it -- some who work there complained about the poinsettias. Too Christian, they said. Too symbolic of one belief system. How would non-Christians feel walking past a bunch of poinsettias?...The landlord, the General Services Administration, felt it had no choice after hearing 'a series of complaints' that poinsettias were 'too Christmas-y,' says Bill Lesh, the agency's spokesman...." -- Danny Westneat, Deck the courthouse with irises? (Seattle Times 12.23.2007). Comment. We like to imagine that if the mighty Holmes were to arise from the dead and enter the Temple of Justice in Seattle, to reclaim his seat on his Olympian mount, he'd grape-wrathfully upset the tables full of irises and order his contemporaneously-arisen Civil War comrades in arms to bring in Washington-state-grown Christmas trees and poinsettias.

 c) A Texas courthouse at Christmas. "Almost every town and village in the Hill Country has some sort of lighting display, but the largest concerted celebration of Christmas involves 11 communities...Burnet decorates the courthouse square and Hamilton Creek Park with thousands of lights and luminarias. The town also hosts Main Street Bethlehem on the first two weekends of December from 6 to 9 p.m. The re-creation of the town of Bethlehem features costumed townspeople going about their business among real donkeys, camels, and other animals...Take a carriage ride to see the courthouse in Johnson City, one of the most beautiful attractions on the trail. In Llano the historic courthouse and town square are decorated in lights, but the real attraction is the pathway of lights in Llano River Park...." More (Austin Chronicle 11.22.2006).

Further reading. BurtLaw's Law and Christmas (some links there have expired);


 Retiree's been doing pro bono courthouse duty for 21 years. "He's like the Waldo of the courthouse, often seen in the background of prominent court cases featured on local television. He is never mentioned in the stories. But all the judges, their staffs and lawyers know Alfred 'Al' Chamizo and rely on him for updates on hearings, ongoing trials and for help in locating each other. And the retiree has been doing this for the past 21 years on his own time, without compensation...." More (Honolulu Star-Bulletin 12.06.2006). Comment. This is a good story, worth reading in its entirety. Lots of "court families" around the country are going to be asked, like ordinary families, to absorb their share of budget cuts during these troubled economic times. Instead of whining that courts are somehow different and shouldn't have to share in the pain, our chief judges and court administrators need to think creatively about ways to not just get by with less but maybe even do more with less. It can be done by engaging in what I've called "creative Thoreauvian judicial economics." Or, if you want, call it "Robert Frostian judicial economics." To paraphrase Frost, 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 and other poetic form and metres. 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. Just one example: Justice Holmes, in his great "Path of the Law" speech back in 1897, said that our great common law has been developing for "nearly a thousand years." See, O.W. Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897). It's only in recent years, relatively speaking (i.e., since Holmes spoke), that our fine judges have convinced themselves they need press officers, law clerks (sometimes more than one), court administrators (layer upon layer of them), their own personal secretaries (as opposed to pool secretaries), etc. Ironically, it's pretty much contemporaneous with courts' increasing reliance, indeed over-reliance, on these "new age" judicial employees that many of our fine judges apparently have found themselves with so much free judicial time on their hands that they can engage in that vast assortment of ego-boosting "frolics and detours" (from traditional judicial business) that go under the name of "judicial outreach." One way, I therefore suggest, that our chief judges around the country can start cutting their budgets is by eliminating or reducing their reliance on these new-age judicial employees, those whose services judges traditionally, during Justice Holmes' "nearly a thousand years," did just fine without. Want another example? Entice, train and rely on retired lawyers and judges to do a little pro bono volunteering at their nearest courthouses a la Al Chamizo. Want more ideas? I've got scores of them but I've sadly learned that many chief judges and judicial administrators around the country really are too skeptical of and resistant to fresh ideas on how to run better operations at less cost. I guess it's easier for them to say reflexively, "Hey, courts are different. We can't do with less and if you insist we do, we'll cut services, delay deciding cases, etc." But one thing I've also learned is that unlike these types, good government employees, including good judges, 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. Further reading. BurtLaw's Law and Judicial Economics. And, read on....

 a) Judges, saying they're 'special,' are pushing for 17% pay raise. "Canada's federally appointed judges are not backing down from a quest for a pay raise of 17 per cent over the next four years, despite a receding economy and scaled-back pay for politicians and other public servants covered by the federal treasury. 'We're a special group in a sense,' said Justice Pierre Dalphond, president of the Canadian Superior Court Judges Association, representing more than 1,000 judges. 'We cannot be disconnected from the rest, I understand that, but at the same time, we're in a special position and I guess all of that is going to be factored in when the time comes to make a rational decision.'" More (Canada.Com 12.08.2008).

 b) Federal judge says he's 'insulted' by relatively low pay of federal judges. Eleventh Circuit Judge Peter T. Fay, speaking at a conference of the Southern District of Florida's bench and bar, said, in part, "Judicial salaries are an outrage. The situation is beyond embarrassment. It's insulting." More (Daily Business Review via Law.Com 12.09.2008). Further reading. Do most lawyers really take a pay cut when they become judges? (The Daily Judge 06.24.2008) (with links to previous in-depth postings on judicial whining about their "paltry" pay). See, also, 'I could be making lots more if I were Michael Jordan....' (BurtLaw's Law and Everything Else 01.01.2002).


 Another judge ignores BurtLaw's rule-of-thumb re contempt. "For the second day in a row, Judge Robert Ruehlman threw someone in jail and cited him for contempt for cussing in the courtroom. It was an accused gang member Wednesday. On Thursday, it was a private attorney in a non-criminal case...." The attorney, Michael Brautigan, had just been granted a continuance in his civil suit against his condo association. As he and the association's attorney were turning to walk away from the judge, Brautigan called the other attorney a "[bleeping] liar." The other attorney then informed the judge, "He used the famous F-word." The judge apparently hadn't heard it because he asked Brautigan if he'd said it. (If the judge didn't hear it, was it said in his conscious presence?) When Brautigan admitted he had said it, the judge immediately cited him for contempt and sentenced him to six months in jail. Why six months? According to the Cincy Inquirer (12.05.2008), he said he "had to give him six months" because the day before he gave the accused gang member six months for contempt. Comment. Of the many trial judges I've known and admired, not one ever needed to rely on the contempt power to maintain order and an atmosphere of mutual respect in the courtroom. It's just my opinion but a judge's holding someone in contempt for a comment in court is sort of like a teacher giving a student an "F" -- it's a sign, though not proof, the judge or teacher failed in some way. Moreover, a trial judge's use of the contempt power to maintain order in the courtroom can be risky to a judge's career. I remind all trial judges of BurtLaw Rule-of-Thumb #139 for avoiding trouble with the public, with the press, with governors, with lawyers and/or with the discipline folks: Avoid using the contempt power altogether. The rule is related to Rules #128(b) ("Develop a thick skin") and #117 ("Don't emulate the late Judge Julius Hoffman"), and is a corollary of another rule, one we like to call, in our clever way, The Golden Rule. Update. Judge is reprimanded for cussing in court. "Federal Way Municipal Court Judge Michael Morgan was reprimanded Friday by a state panel for swearing at the city's police chief, making threatening comments to court employees and discussing matters of a sexual nature with his staff...." More (Tacoma News-Tribune 12.06.2008).

 Court employees protest workload, magistrate judge's attitude. "'Enough is enough.' That was the clamour at the Karkardooma district court complex on Friday as hundreds of court staff gathered to protest 'excessive workload' and the attitude of a magistrate that forced a court record-keeper (ahlmed) to attempt suicide by jumping off the third floor on Thursday...." More (Indian Express 12.06.2008).

 Is there a trick to getting SCOTUS to grant cert? "In its last term, the U.S. Supreme Court heard fewer cases than it has in any single term in more than 50 years. This means that getting your case heard at the high court is about 10 times harder than getting into Harvard. How do you up your odds? Just as a recommendation letter from a well-placed alum gets attention from an admissions office, a supportive brief from an advocacy group, sent to the court at the stage when it's deciding whether to take a case, flags a case for the justices...." Adam Chandler, who is "a Rhodes Scholar and first-year law student at Yale Law School," thinks these "supportive briefs," which the right-wingers have been using but the ACLU hasn't, play a significant role in getting SCOTUS to grant cert, and he thinks the ACLU's "staying silent on the sidelines" has been bad strategy. That is, he thinks the ACLU hasn't been playing "smart defense." His views are expressed in greater detail at The Early Brief Gets the Worm -- Liberal groups are ceding a key way to influence the Supreme Court (Slate 12.05.2008). Comment. Perhaps right-leaning recent law school grads who write cert memos are persuaded that cert petitions are more worthy of consideration if they're accompanied by a supportive brief filed by a right-wing advocacy group. I don't know if it's true but it wouldn't surprise me. I don't know how much influence the law clerks have at SCOTUS. I'm guessing too much influence. Chief Justice Charles Evans Hughes, who FF said was a scholar at heart who could "tear the cover off a book," wouldn't have been fooled by advocacy briefs filed at the cert stage; in fact, I doubt he'd have allowed them to be filed at that stage. A court on which experienced, capable, fair-minded judges do their own work -- read the petitions, read the briefs, read the cases, do independent research and thinking, keep an open mind, write their own opinions, respect the opinions of colleagues, etc. -- has no need of such supportive briefs. While Justice Brandeis once was able to write, with truth, that one of the things that set SCOTUS justices apart from others in the government in Washington, D.C. was that "We do our own work," the sad fact is that apparently one can no longer say that about SCOTUS justices with confidence it's true. Further reading. For my extensive critical comments on law clerk use at SCOTUS and at other appellate courts, see, a) Those SCOCLERK opinions (The Daily Judge 07.18.2008), and b) Alito joins Stevens in opting out of 'cert. pool' (The Daily Judge 09.26.2008).


 Drunk man caught in courthouse at night says he was there to serve and protect. Employees at the Jefferson County courthouse in Port Townsend, Washington caught a drunken man inside the courthouse early Wednesday after he'd broken into a historic safe on display that contained nothing of value. His excuse? He'd overheard a couple at a bar discussing a scheme to break in and destroy judicial documents and he decided to go to the courthouse to "protect the town." More (Peninsula Daily News 12.05.2008). Comment. Isn't Port Townsend where one of the popular TV soap operas is set? I think it's just down the road from Port Charles, on the way to Genoa City. Don't be so sure the arrestee is not telling the truth. I've watched enough soap operas to know that the seemingly guilty but actually innocent usually are vindicated. But it takes time for justice to find its way back to the truth.

 WVA judges association wants judicial elections to stay as they are. "The West Virginia Judiciary Association announced its support of the state's current method to elect judges, choosing not to support the idea of non-partisan judicial elections...." The association, which is a group of over 90 SCOWVA and circuit court judges, rejected the recommendation of the group's executive board to switch to so-called nonpartisan elections. More (WVA Record 12.04.2008).

 Two judicial candidates endorsed by gay rights group win runoff in GA. "Two judicial candidates endorsed by Georgia Equality won runoff elections on Dec. 2. Holland & Knight attorney Sara Doyle narrowly beat former prosecutor and defense attorney Mike Sheffield...Although the race was non-partisan, Sheffield branded himself as a socially conservative Republican and was open about his opposition to gay marriage and the Supreme Court ruling that struck down sodomy laws...Another Georgia Equality endorsed judicial candidate, Tangela Barrie, won her runoff for an open Stone Mountain Circuit Superior Court judgeship against Administrative Law Judge Johnny Mason...." More (Southern Voice Atlanta 12.04.2008).

 Judge improperly used title, prestige of office, but career as judge is spared. "The Canadian Judicial Council ruled yesterday that Ontario Superior Court Judge Ted Matlow's 'obsessive' opposition to a neighbourhood development project amounted to serious misconduct -- but it nonetheless voted 17-4 to spare his career...." More (Globe and Mail 12.04.2008). Earlier. Panel recommends removal of judge of 28 years (The Daily Judge 12.04.2008). Comment. I think the council was wise in rejecting the panel's recommendation that Matlow be removed. Speaking generally, sanctimonious judicial conduct boards in my opinion are too quick to remove judges for not being perfect. Who is? And would a hypothetical perfect person make a good judge?

 Judge, 65, 30-year-veteran jurist, is found dead in his car; gunshot wound. "Circuit Court Judge G. Robert Barron [of Okaloosa, FLA,] was found dead Wednesday morning behind the wheel of his car...[T]he initial call over a police scanner described a victim with a gun shot wound. No foul play is suspected...Longtime family friend Don Anchors...confirmed...that Barron had recently been having health problems he found debilitating and discouraging, and he confirmed that Barron had taken his own life...." More (NWF Daily News 12.04.2008). Update. Sad report on funeral of Judge Barron (NWF Daily News 12.07.2008).

 Woman who launched rebellion against Bronx 'boss' is sworn in as judge. "A reader forwarded [a] photo of the induction ceremony for newly-elected Civil Court Judge Elizabeth Taylor, whose candidacy launched the successful so-called Rainbow Rebel movement to overthrow Bronx Democratic boss Jose Rivera. Taylor's win on primary day was among a handful of victories for the rebels and struck the first blows in what ended up being a full-blown war for control of the party...." More (The Daily Politics blog at NYDailyNews 12.02.2008).


 Polanski, still a fugitive, moves from afar for relief from guilty plea to sex with minor. "Thirty years after he became a fugitive to avoid a prison sentence for having sex with a teenager, Academy Award-winning director Roman Polanski asked a judge Tuesday to dismiss the case. In the motion [or is it a "request"?] filed in Los Angeles County Superior Court, lawyers for Polanski alleged 'repeated, unlawful and unethical misconduct' by a prosecutor and the trial judge and requested that the charge which prompted him to flee the country be dropped 'in the interests of justice.'" More (LAT 12.03.2008). Comments. a) Having in mind the "fugitive dismissal rule" (sometimes known as the "fugitive disentitlement rule"), I would suggest that, "in the interests of justice," Mr. Polanski return to California and appear in person if he wants the California court to entertain his motion. Ortega-Rodriguez v. United States, 507 U.S. 234, 239-40 (1993); Molinaro v. New Jersey, 396 U.S. 365, 366 (1970). Incidentally, the "fugitive dismissal rule" has its counterpart in traditional White House pardon practice: traditionally, the President won't consider pardoning one who is a fugitive from justice: "The precedent against pardons for fugitives was set more than 200 years ago by President John Adams." George Lardner, Jr., A Pardon to Remember (NYT 11.24.2008). (If the name Marc Rich rings a bell, you'll remember that the President who didn't respect the precedent was outgoing President Clinton; if you've been reading the newspapers of late, you'll know that the fellow who "signed off" on the legitimacy of that pardon was President-elect Obama's attorney general-nominee, Eric Holder.) b) Want another reason for rejecting the pardon? Then read how Polanski was able to use the U.K.'s notoriously plaintiff-friendly libel laws to obtain a judgment against an American writer and an American publication sold on newstands in the U.K.: How the British courts do it. Graydon Carter, Roman Holiday -- How I spent my summer vacation in London being sued by Roman Polanski -- and what I learned about 'solicitors,' pub food, and the British chattering class (Vanity Fair 09.19.2005). Wikipedia summary of the lawsuit.

 Quote of the Day. "There's going to be a basket going around because I'm running for Traffic Court judge, right, and I need some money. I got some stuff that I got to do, but if you all can give me $20, you're going to need me in Traffic Court, am I right about that?...Now you all want me to get there, you're going to need my hook-up, right?" -- Willie F. Singletary, a church deacon, was speaking at a "blessing of the bikes" of members of the Philadelphia First State Road Rattlers Motorcycle Club when he turned the blessing ceremony into a fund-raiser for his successful 2007 campaign for traffic court judge in Philly.The passing of the hat brought in $285. Singletary, 28, has now been found guilty by a PA panel of four counts of misconduct. The possible punishment if the determination sticks ranges from reprimand to removal from office. Full story (Philadelphia Inquirer 12.03.2008). Comments. a) There are some lawyers who've had some success in litigation involving First Amendment rights of judicial candidates who believe judicial candidates have a right to solicit funds. They probably would be less inclined to defend a candidate's hinting that if people support him he'll look kindly on their cases. b) At the time Judge Singletary ran, he couldn't drive: he had accumulated more than $11,000 in fines for over 50 unpaid traffic tickets (fines his dad later paid) and his driving privileges had been suspended. His violations included reckless driving, driving without a license, careless driving, driving without registration, and driving without insurance. The original suspension was until 2011. Not sure if that's still in effect. Anyhow, maybe he won the election because some voters concluded on the basis of his record that he had the "real world experience" needed to understand the plight of people coming before him as traffic court judge -- call it "experience-based empathy" (as opposed to "imaginative empathy"). And what's wrong with that? :-) c) The "blessing" ceremony was "caught on tape" and posted on YouTube. Isn't everything? If you're a judge and you think you can get away with not putting in your hours at work, think again. Sooner or later your hooky playing will be caught on tape and broadcast on YouTube and/or on the evening local TV "news" during "sweeps week." Further reading. It's 'Sweeps Month' for local TV 'news' shows -- judges are targets (The Daily Judge 11.10.2008); More on judges and judicial employees caught on tape (The Daily Judge 11.13.2008).


 Choosing a chief justice -- the Nevada way. "Nevada Supreme Court Justice William Maupin is back in a familiar role -- one that will allow him to end his legal career as chief justice...He'll keep the gavel until he ends his term at the end of the year...He previously served as chief justice in 2000 and 2001. Under the Nevada Constitution, only justices in the last two years of their 6-year term can serve as chief justice...." More (San Jose Mercury News 12.02.2008). Comments. a) The chief justiceship in Nevada seems to be easy to get, easy to lose, and easy to get again. But then Nevada is the easy-come-easy-go state. Nevada must have had as many chiefs as Italy has had prime ministers. See, List of prime ministers of Italy (Wikipedia). For some reason, I am reminded of a rather sad 1/2 hour "reality" TV show in the 1950s called Queen for a Day, in which four women would tell sob stories about how bad off they were & the audience would select one of them to be "Queen for a Day," crowned & presented with a few prizes (say, a washing machine) by former carnival-pitchman Jack Bailey. Bailey opened the show by asking (shouting), "Would you like to be 'Queen for a Day'?" Would you like to be Chief Justice of SCOTUS for a couple days? Ross Davies, William Cushing: Chief Justice of the United States, 37 U. Toledo L. Rev. 597 (Spring, 2006), summarized by Tony Mauro, argues that John Roberts isn't the 17th Chief Justice but the 18th, pointing to evidence that for two days in February of 1796 Associate Justice William Cushing was in fact the Chief Justice. b) One shouldn't lose any sleep worrying about whether Roberts is #17 or #18. To officially have been Chief for two days ain't much different than being acting chief when the real chief is out of town or out of commission, something that happens all the time in appellate courts. Come to think of it, at base being chief on a typical state supreme court isn't more significant than bein an associate justice. As the old saying goes, the chief is just "first among equals." He may have a few assigned duties that the others don't have, but the others have their ways, too....

 Annals of control of the judiciary: 'controlled burn' guts courthouse. "[M]any residents who flocked to the courthouse Monday afternoon to watch a controlled fire gut the 1905 building that in August was deemed structurally unsound...[T]he building will be demolished later...." More (Mitchell Republic - SD 12.02.2008). Comment. Why am I shocked by this story? How, I hear myself asking, could "they" deliberately burn down the Hanson County Courthouse in Mitchell, SoDak? Something about that just doesn't seem right but I can't put my finger on it.


 Herein of courthouse thermostat wars. "Judges who have heard the complaints of chilly courthouse workers spoke to [St. Charles] county officials Monday, but it appears the temperature will remain the same for now. To save money, Michael Buford, the county's director of facility management, turned down the temperature to 69 degrees in county buildings as cold weather set in, but, after a host of complaints, he moved the temperature up to 72 degrees. That's where it will stay until further notice, he said at a meeting Monday afternoon...Circuit Clerk Judy Zerr said the temperature in some parts of the courthouse is as low as 65 degrees, and at least one employee has a doctor's note saying the cold temperatures inside are causing medical problems...Buford said he keeps his own home at 65 degrees in the winter...." More (St. Louis Today 12.02.2008). Comment. A county employee is one of many posting a comment on the newspaper's website. This employee writes: "The actual temperature in my office varies from 61 degrees to 67 degrees. They may say that the temp is 72, but I don't know where." This is often a problem in courthouses. If it's hot, the way many women I've worked with seem to like it, then it's uncomfortable for us tough Viking guys. I used to have to open my window in the middle of January it was so damn hot in my office in the MN Judicial Center. I knew of a judge who worked in his undies! NOT. :-)


 Elite and 'diverse' panel of 'national' and 'esteemed' judges will judge beauty pageant! "The 2009 Miss America Pageant promises to be an exciting event with the announcement of the strikingly diverse panel of national judges. This year's panel of seven esteemed judges includes a Broadway star; a renowned denim designer; a Miss America turned philanthropist; an Olympic gold medalist; a casting genius; a celebrated entertainment news reporter and anchor; and the hottest hairdresser in Hollywood...." More (MarketWatch - press release 12.01.2008). Comment. But not one -- not one! -- common law judge will sit on the panel. I'm saddened by this oversight. Who better to judge anything than a common law judge? Awhile ago Justice Scalia gave a talk in which he decried "stink[ing]" judicial salaries, saying that paltry salaries for judges will lead to a system of career-minded, bureaucratic, "beady-eyed" judges. See, Scalia decries stinking judicial salaries, bureaucratic career judges (The Daily Judge 12.14.2006). We don't share his concern about the pay or about maintaining a pool of judicial talent. Indeed, we envision an ideal judicial world that we like to compare to a barn. Judicial accolytes would start out learning the ancient and honorable craft of common-law judging by judging poultry competitions, etc., then dog shows, then jam'n'jelly competitions, then beauty pageants, etc., etc., working their way up ye olde judicial ladder that leads to the judicial equivalent of the exalted heights of the hay mow, the U.S. Supreme Court, where the pay is not, as Scalia suggests, paltry-poultry chicken feed but more than adequate -- unless, of course, one chooses to have a dozen kids. Further reading. Ethics 101 - May a common law judge serve as judge of beauty pageant? (The Daily Judge 08.29.2005); The Next Chief Justice Pageant (The Daily Judge 06.27.2008); Is Bush considering TV reality-show format for selecting new Justice? (The Daily Judge 07.05.2005).

 Annals of judicial appointment screening commissions. "[N.Y.] Gov. Paterson got a list of potential nominees to head the state's top court Monday - and he's not happy with it...Of the seven, all were male. There were no Hispanics and just one black nominee...." More (NYDailyNews 12.02.2008). Update. Paterson says he's 'outraged' no woman on 'bipartisan' panel's list (NYT 12.04.2008). Apparently the problem with the panel that Paterson complains of is nothing new. Says the NYT:

The 12-member commission was established after a 1977 amendment to the State Constitution ended the popular election of the state's top judges. Four members of the commission are appointed by the governor, four by the chief judge and one each by the four leaders of the State Legislature. Former Gov. Mario M. Cuomo was frustrated by the commission's recommendations in 1983 when it presented him with a list that contained no women. But he was ultimately bound to choose from the commission's slate of candidates.

Comment. The use of so-called merit screening doesn't take politics out of judicial selection. It just adds another stage of "politics." Panel members in merit-screening states typically aren't political eunuchs. And in other states they've not been above engaging in gamesmanship, as by excluding any women from the finalists they prevent a governor who is bent on appointing a woman from being able to appoint a woman. And, as a Machavellian would say, by excluding any women from the list, they give a governor a good excuse to say he wanted to appoint a woman but can't because of the knuckleheaded commissioners.
Further reading. Gail Chang Bohr wins election to open seat on district court in Minnesota (The Daily Judge 11.05.2008).; Why the MN Plan is better than the Ozark State Plan (The Daily Judge 02.05.2008). Updates. a) FLA governor makes same complaint about FLA nominating commission that NY governor made about NY's commission: "The Judicial Nominating Commission which earlier this week was ordered by [FLA] Gov. Charlie Crist to reconvene and consider resubmitting a more racially diverse group of finalists for an open Fifth District Court of Appeal judge's seat, rebuffed the governor's directive by presenting the same names Thursday...." More (Ocala.Com 12.06.2008). b) "There's far from unanimous agreement that the [New York merit commission selection] process has always produced 'talented and intelligent individuals' for governors to choose from. Vincent Bonventre, an Albany Law School professor and a close observer of [NY's top appellate court], thinks that the quality of judges was better when they were elected. But he said this crop of nominees, y chromosomes and all, is an unusually distinguished group...." More (Lower Hudson Journal-News 12.07.2008). c) Judicial elections in MS as check on bias in appointments (Jackson Free Press 12.10.2008) ("Pointing out that Gov. Haley Barbour has not appointed one black judge out of 18 judicial appointments to date, two attorneys and a Supreme Court justice agreed at a Saturday meeting that Mississippi's electoral process for deciding state and local judges was superior to a system of appointing judges").



 'An Alaskan, a judge and a general walk into a bar...' 'That's a headline in today's AJC (12.01.2008). The headline refers not to men, as you stereotypers assumed, but to three women campaigning in support of their favored candidates in the runoff contest in Georgia for U.S. Senator. The Alaskan is Gov. Sarah Palin, and she's supporting the incumbent, GOP Sen. Saxby Chambliss. The judge is former Fulton County Judge Glenda Hatchett, now known in her TV courtroom as "Judge Glenda," and the general is retired Lt. Gen. Claudia Kennedy, former deputy chief of staff for intelligence -- they're supporting Democrat challenger Jim Martin. Comment. When a TV judge or a former lieutenant general or a gov'ner of 'laska speaks, I listen....

 Speaking of TV judges.... Judge Joe Brown, of TV fame, has slammed "gangsta rap." He did so in his address to the graduating class of the Edna Manley College of the Visual and Performing Arts at Courtleigh Auditorium in New Kingston. He said, in part: "Hardcore gangster rap is not the answer. Not because it is vile, vulgar or profane, but because it does not show the man or woman of colour about the business of changing his or her neighbourhood for the better. It merely shows a glorification of negativity in some obscene acceptance of second-class citizenship, in second-class status, in the glorification of dysfunction!" More (Jamaica Gleaner 12.01.2008). Comment. As I said, when a TV judge speaks, I listen....

 Model 'brawls' in court with hubby's mistress. So says the eyecatching headline in the NY Daily News (12.01.2008), in a report of a little to-do in the hallway during a recess in her hubby's bribery trial. The "model" is a woman I've never heard of, Cindy Guyer. During a recess in the trial of her hubby, Andrew Catapano, she followed his new gf, who was sitting in the front row, out to the hallway. There, according to witnesses, "she called the woman a 'tramp,' flashed her wedding ring -- and pulled the woman's long hair." I love this line from the Daily News' report: "Judge Frederic Block ordered U.S. marshals to sit beside Guyer if she returns to Brooklyn Federal Court today, and to boot her at the first sign of a catfight.." In my imagination I can hear the judge announcing his order: "I am ordering marshals to sit beside you, Ms. Guyer, and at the first sign of a catfight to boot you." Yeah, that's the just the way judges talk. What the story later reports is what the judge apparently really said, during a sidebar: "If there's any outbursts on [Guyer's] part, we'll have to immediately take her out of the courtroom."

 'Kentucky judge seizes control of the internet.' Yet another amusing headline, this from NetworkWorld (12.01.2008). Here's a brief excerpt from the story: "Last September, Franklin County (Ky.) Circuit Judge Thomas Wingate decided that the entire, worldwide Internet is within the jurisdiction of the state of Kentucky...Judge Wingate ruled in September and reaffirmed in October that Internet gambling sites must block Kentucky's citizens from accessing them, and sites that don't comply will have to give up their domain names...."

 The urine-steam-inhalation defense to DWI prosecutions. "An Irish judge has thrown out two separate drink-driving cases because of the danger the defendants inhaled alcohol from their own urine while in garda custody. The rulings, by Judge James O'Connor, came as there was increasing concern at government level over the high number of non-convictions in drink-driving cases. Last month, at Killorglin District Court in Kerry, two separate drink-driving cases were dismissed after the presiding judge ruled that the steam of the defendants' urine could have affected their alcohol readings taken during subsequent breath testing...." More (Belfast Telegraph 12.01.2008). Comment. Is this a modern-day variant of the old defense, beloved by Irish immigrant brawlers in western MN: "His face came into contact with my fist"? Or is there something to it? Read the story to get a fairer presentation of the judges' reasoning than I've provided.

 Judge leads efforts to build $262 million skyscraper courthouse. "Plans are taking shape for a new San Joaquin County Superior Court that could one day be the tallest building in Stockton's skyline...William Murray, the court's presiding judge, is leading efforts to build a $262 million courthouse in Stockton that could...stand up to 12 stories tall...." More (Record Net 12.01.2008).


 The trouble with 'originalism.' Worth a read, a thoughtful letter, 'The trouble with originalism,' by Evan C. Zoldan in the Washington Post (12.01.2008). Dahlia Lithwick, in The Dark Matter of Our Cherished Document -- What you see in the Constitution isn't what you get (Slate 11.17.2008), reviews Laurence H. Tribe, The Invisible Constitution (Inalienable Rights) (2008). Some FOX-News-types are predicting Armageddon because President-elect Barack Obama reportedly believes ours is a "living constitution," not the "dead constitution" of Justice Scalia. If it's true that he agrees with his mentor Larry Tribe's views, and I think it is, I say, "Go for it, Barry." I explain my views in my comments to Pick to be new Aussie chief is an 'orchid' (The Daily Judge 08.01.2008).

 'New' allegations against Judge Kozinski by old foe. Back in 2001 Leonidas Ralph Mecham, who was then Director, Administrative Office of United States Courts, got into a skirmish with the Judges of the Ninth Circuit over the issue of monitoring of computer use by the judges and their employees. Judge Kozinski was the leader of the opposition to Mr. Mecham's monitoring plan, and Mr. Mecham made some accusations as to Kozinski's motivation for opposing monitoring. See, my extended posting titled "Foes of monitoring of judges' computer use win first round" (scroll down) at BurtLaw's Court Gazing II. Now Mr. Mecham, having lost that battle, apparently has basically re-raised an allegation he then made against Judge Kozinski, that the judge had improperly disabled the court system's software designed to prevent access to certain websites that the judicial monitors deemed objectionable. Mecham has done so in a complaint to the U.S. Circuit Court in Philadelphia, which is considering an allegation that Judge Kozinski did something wrong in posting allegedly offensive material in semi-public subdirectories to his personal web site that his son and he maintained on a home server. See, New allegations against Judge Alex Kozinski -- denied by his attorney (L.A. Times 11.29.2008). I discussed all this, with links, in a long piece in June of this year that I titled Sir Burton rises to defend Chief Judge Kozinski over porn postings. If you read my 2001 posting, including the linked-to NYT piece, and the one from this last June, you'll see that Mr. Mecham's allegations against Kozinski are not "new" but old. Further details. Miami Herald story on Mr. Mecham's attempt to get Judge Kozinki removed from office (12.02.2008). Update. I just checked and found that Howard Bashman of the How Appealing blawg has posted, in PDF form, the Mecham complaint, minus exhibits and cover pages. Maybe it's just me, but it reads an awful lot like some of the many pro se briefs and filings I regularly read in my long tenure as an aide to the justices of SCOMN.

 Retiring SCOMASS justice is 'no shrinking violet.' So says the headline in today's (11.30.2008) Bawston Globe. Here's the lead for an interesting story: "Justice John Greaney didn't write the Supreme Judicial Court's landmark ruling making Massachusetts the first state in the nation to legalize same-sex marriage, but five years later, a passage from his concurring opinion is sometimes used by gay couples in their wedding ceremonies. 'We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth,' Greaney wrote. 'Simple principles of decency dictate that we extend...full acceptance, tolerance and respect. We should do so because it is the right thing to do.'"

 It's not Sheriff Wyatt Earp but Judge Craig Strong. Craig Strong is a judge in Wayne County Circuit Court. Yesterday around 7:15 p.m. he entered his home in Indian Village in Detroit and found three burglars inside. Strong chased them out, shooting at them with his gun. The men got away, leaving behind Strong's TV on the front lawn. More (Detroit Free Press 11.29.2008).


 Judges get 300% pay hike. "The Union Cabinet on Thursday decided to increase the monthly salaries of judges of the Supreme Court and High Courts three-fold...." More (The Hindu - India 11.29.2008). Comment. While reading this at breakfast, Justice Scalia has a sudden change of heart that surprises even his wife, Maureen, the Radcliffe grad, who's used to Nino changing his breakfast preferences on a daily basis. Here's a transcript of the conversation, as caught on our Nino Webcam: "Mo," says Nino, "I think I've been wrong in being so rigid." "You, rigid!? The problem is you're too nino!" "Let me finish! What I was saying was I think I've been wrong in opposing all reliance on foreign precedents. Here's one I like." Further reading. Scalia decries stinking judicial salaries, bureaucratic career judges (The Daily Judge 12.14.2003); Transcript of Breyer/Scalia Debate on Foreign Precedents at American University 01.13.2007 (Free Republic 02.27.2007).

 State auditor disapproves of county courthouse's 'mowing arrangement.' "State auditors don't approve of the mowing arrangement for the Mississippi County Courthouse [in Charleston, MO], but it isn't likely to change...." The problem? If compensation exceeds $5,000 per year, as the current mower's did by $200, the county is supposed to solicit bids, which it didn't. Why didn't it? Because it's tried that in the past and other arrangements, none of which worked out. When it tried bidding, the county wasn't satisfied with the work. It tried using prison laborers but their work "'turned out to be  nothing but a mess.'" County Clerk Junior DeLay, however, who's been doing it, has done a superb job: a) he does more than he gets paid for because he cares about making the grounds look good; b) under his care the grounds have been named "Business Yard of the Month" a number of times. Full story (Southeast Missourian 11.29.2008). Further reading. Clint Stephens, courthouse custodian -- and more (The Daily Judge 07.30.2005); Might Mr. Stephens' flowers lead to better government? (The Daily Judge 07.30.2005).

 Car club's car show helps light courthouse at Christmas. "This year marks the 24th year the Newark Rodders Car Club Inc. will donate money to the courthouse lighting committee for the purpose of helping to light the Licking County Courthouse at Christmastime...." The club's "Lite The Nite Car Show" in September helps raise for the lighting of the town square. The amount donated this year: $4,300. More (Newark Advocate - OH 11.28.2008).



 History of political campaign blogging. Some credit the Howard Dean presidential campaign in 2004 with maintaining the first campaign blog. Others cite as the first campaign blog one maintained by a congressional candidate in 2002. Actually, one has to go back earlier, to 2000. I was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000. I began planning my first law blog, BurtLaw's Law And Everything Else, one of the pioneering law blogs, in 1999, but I delayed starting it until after the 2000 general election. My 2000 campaign website,  the no-longer-extant VoteHans.Com, contained a personal campaign blog (weblog or web journal), i.e., a blog actually written and maintained by the candidate, not by some staffer. I like to think it was the first campaign blog (a/k/a weblog or web journal), although it's quite possible someone else independently came up with the idea and executed it contemporaneously in 2000 also. Because most "web archivers" were not in business in 2000, there has been no web record of my campaign website and campaign blog. For archival purposes and in the public interest, I have reproduced and reposted as near as I can, given software changes, the backed-up contents of what was VoteHans.Com as it appeared in 2000. Here are the links: Campaign Home Page; Campaign Journal; Earlier Journal Entries; Even Earlier Journal Entries; Earliest Journal Entries; Endorsements and Contributions; Mandatory Retirement of Judges; Judicial Independence and Accountability; Questions and Answers; BRH Speech; Emerson for Judges; Quotations for Judges; MN Const. Art. VI; About BRH.
Our Motto - "Ridentem dicere verum quid vetat" (Horace). Loose translation: Does anything prevent telling the truth with a smile?

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