The Daily Judge
© 2005 Burton Randall Hanson
           Archives - 10.25.2005 - 10.31.2005
"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."

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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

    Bush nominates Samuel (Alito) to succeed Sandra (Day O'Connor). Here's a link (Washington Post 10.31.2005) to the "bio" released by POTUS.

    Judging Judge Posner. "Posner is the most prolific federal judge in American history. In addition to more than 2,200 published opinions, he’s written thirty-eight books on a dizzying array of topics, from Monicagate to aging to intelligence reform, and more than 300 articles, op-ed pieces, reviews, and essays -- including a recent blockbuster about the press. Along with Gary Becker, a Nobel economist in the monetarist Milton Friedman mold, he maintains a blog ( on which they tag-team on the finer points of everything from plagiarism to whether it’s cost-beneficial to fully rebuild New Orleans. He’s a professor at the University of Chicago Law School. He edits the American Law and Economics Review and is the founder of the Journal of Legal Studies...." From a profile by John Giuffo, Judging Richard (Columbia Journalism Review November-December 2005). Comment. There are a number of reasons Posner wasn't seriously considered for the Supreme Court: First, he's too old for the GOP strategists (even though, as Judge Posner has pointed out in his book on aging, judging, unlike many fields of endeavor, is a "late-peak sustained activity"). See, discussion at BurtLaw on Mandatory Retirement of Judges. Second, he's too independent-minded and fearlessly outspoken and has left a paper trail (see, above) that stretches from here to Mars, offending nearly everyone who's easily offended at some point. Third, despite being a "conservative" of the law and economics type, he's not ideological enough for the rubes and TV reverends who form Bush's radical right-wing political base. Not even Justice O. W. Holmes, Jr., one of Posner's heroes, would stand a chance with those folks.

    'Steed' says his having three wives should be no bar to his being a judge. "The Utah Supreme Court will hear arguments Wednesday over whether polygamist Justice Court Judge Walter Steed is fit to remain on the bench. Steed contends his having three wives is protected by the U.S. and state constitutions and does not affect his judicial work...Steed has served as a justice court judge in the polygamous border town of Hildale since 1980...He legally married the first wife in 1965 and married the other two in 1975 and 1985 in religious ceremonies. He has 32 children...." More (KSL-TV 10.31.2005). Further reading. The Top 14 Biblical Ways to Get a Wife.

    Most Russians distrust authorities, Putin, courts. "More than half of Russians think everyone in power is dishonest, a survey showed on Monday, from the president and parliament to government and the courts, Reuters reported. 'This goes a long way to explaining the colossal level of political apathy in society,' said Alexander Konovalov, president of the Institute for Strategic Assessments...." More (MosNews 10.31.2005). Comment. The article states: "The Duma is packed with members of the pro-Kremlin United Russia party and critics say many deputies rubber-stamp legislation while enjoying the perks of office." Boy, I'm glad that even though the President's party controls both Houses of Congress in the U.S., the Congressmembers are all independent-minded folks who'd never rubber-stamp anything.

    Judge Hlophe speaks out on courtroom dress & decorum. Judge Hlophe is the judge in South Africa who created controversy recently by publicly accusing a respected colleague of overt racism. See, Saving the truth and embedded links. It's rather amusing to find him instructing attorneys and advocates on etiquette but that is what he did over the weekend:

Referring to the dress code for counsel and attorneys in his court, he said there was a need to discourage "fanciful colours, red, blue and green and so on and as far as possible people needed to wear dark colours." There were those who appeared in his court and tried to wear "all manner of fancy things," Judge Hlophe complained. Noting that he might be accused of sexism, he also expressed concern about "mini skirts" and urged attorneys and advocates "to try where possible to wear dark clothes."

He also said, I think shockingly: "At the end of the day you are at a court's mercy. If you irritate a presiding officer your client will suffer." Is he really saying judges will visit the sins of an attorney on the attorney's poor client? More (IOL 10.31.2005).

    Bill would require 10-year wait between politics, judging. "A Knesset member or government minister can be appointed justice only after a 10-year cooling off period from any governmental or military position, according to a bill approved Sunday by the ministerial committee for legislative affairs...." The bill's proponent, MK Gideon Sa'ar (Likud), argues the law is needed to reinforce the separation of the legislative and executive function from the judicial function. But the more immediate motivation, according to Ha'aretz, is "to block an initiative to appoint former minister Dan Meridor as a Supreme Court justice."More (Ha'aretz 10.31.2005). Comment. Maybe there's an argument in favor of the bill in the context of Israeli politics and government, something to which I'm not qualified to speak. Such a rule in the U.S. would be a big mistake.

    Judge arrested for DUI sues state patrol, wins $1 million verdict. "The Colorado State Patrol says it is working with the state attorney general's office to determine how to react to a federal jury's decision to award $1 million to a municipal judge it held was wrongly arrested on a drunken-driving charge. Jurors found Friday that trooper Cpl. Kevin P. Turner did not have probable cause to arrest John S. Wilder of Monte Vista for drunken driving or prohibited use of a weapon, and did not qualify for immunity from a lawsuit as a public employee...." More (9News 10.31.2005). Comment. I suspect the final word hasn't been written on this case.

    One big courthouse. "When I was a young reporter covering the courthouse in Ft. Worth, I always found the best stories about the sheriff came from the county commissioners. The best stories about the county commissioners always came from the sheriff. When I got to Washington, my first beat was the Pentagon, and I knew nothing about defense policy, but I discovered the Pentagon was just one big courthouse. The straight scoop about the Air Force always came from the Navy. The straight scoop about the Navy always came from the Air Force...." Bob Schieffer, One Big Courthouse (CBS News 10.31.2005).

    Let cameras in the big courthouse? Henry Schlieff, Chmn. & Chief Exec., Court TV, not unexpectedly, thinks the right answer is yes. More (Washington Post - Opinion 10.31.2005). Comment. We believe that the U.S. Supreme Court (and all state supreme courts and federal appellate courts) ought to allow videotaping and live TV coverage of all oral arguments. But we aren't just interested in greater public access to what goes on in front of the red velour curtains. We think there's far too much judicial secrecy and that many (but not all) things that judges do and say behind the red velour curtain ought not be secret or protected by privilege. See, in addition to our comments at Saving the truth, our earlier comments following the entry titled Illinois judges opine on judicial privilege.

    Annals of rape defenses - 'I'm too big.' "A Superior Court judge must decide whether to believe a 21-year-old accused who says he could not have committed a sexual assault because his penis is too big. Mischa Beutling, a second-year engineering student at McMaster University in Hamilton, has pleaded not guilty to sexual assault on a friend who spent the night with him after partying at a Barrie bar during study week in February 2004...[A] urologist [who] testified that Beutling's penis is in the top 5% range...showed the court a plastic model of a penis approximating the accused's member at a semi-relaxed state, which measured 8 1/2 inches in length and 6 1/2 inches in girth...." More (Toronto Sun 10. Comment. It is no secret that as a behind-the-scenes aide to the Justices of the Minnesota Supreme Court over a period of nearly 30 years I read thousands of trial transcripts in their entirety, many of them of criminal trials. I can't recall any "I'm too big" defenses, but I recall a number of "I'm too small" and "I'm impotent" defenses, at least one "corroborated" by a wife or girl friend. "She asked for it" and "She begged for it" defenses are fairly common. One of the most unusual such defenses was that "she" wanted to experience being "raped" and that she asked him to break into her house and do it.

    Knox County judge's knuckles knocked for barring Knoxville attorney. "A state appellate court has rapped a Knox County judge's judicial knuckles for barring an attorney and possible election opponent from practicing in his court.
In a scathing opinion released late last week, the state Court of Appeals overturned a decision by Fourth Circuit Court Judge Bill Swann that barred Knoxville attorney David C. Lee from practicing in Swann's court. According to the opinion, Swann bounced Lee from his court after Lee told the judge that he planned to run against him in the 2006 judicial elections...." More (Knoxville News-Sentinel 10.30.2005). Comment. By the same token, Mr. Lee's announcement of his plans ought not force the judge to recuse in cases in which Lee represents a litigant, else an attorney could obtain an otherwise unobtainable recusal simply by announcing his plan to run against a judge.

    Another beachcombers' rights case - who says all 'judicial activism' is bad? This one upholds customary rights of beachcombers and drivers on, you guessed it, the beach where people are allowed to drive cars, Daytona Beach. "The latest was a ruling by Circuit Court Judge J. David Walsh on a particularly aggressive claim of private ownership and control of the beach west of where the sand gets wet. A claim helped along by the Pacific Legal Foundation, a legal foundation that sues to promote private property rights claims. A group of New Smyrna Beach beachfront landowners filed suit in 2000 asking the court to ban beach driving and force county government to repay them for having allowed cars to drive on their property. Their property being the sand between the mean high waterline to the sand dunes. Or where the sand dunes would be if they were there. The judge turned them down flat...." More (Daytona Beach News-Journal 10.30.2005). Comment. See, Beach rights recognized -- we've had 'em all along, but.... (Entry dated Friday, 07.30.2005 at Burton Hanson.Com - scroll down). It's been a good year for those of us who favor enforcement of traditional, long-held rights of beachwalkers against beachfront landowners who bought the beachfront property subject to those rights. See, State's top court rules beach walking is o.k. (Detroit Free Press 07.30.2005). Text of Michigan Supreme Court's opinion.

    Law and swimsuits. It's a rainy Sunday morning in God's Country, Minnesota, one of the few rainy days in what has been a glorious October. The beach story, supra, puts me in the mind of sun and sand and swimming. Which is my cheap excuse for linking to our 2003 posting, BurtLaw's Law and Swimsuits, the first swimsuit issue in the history of weblogging or blogging, certainly the first in the history of law blogging or blawging. Indeed, it may be the first such issue of any legal publication in the history of Anglo-American law, nay, in the history of law! It thus truly is not just a run-of-the-mill collector's edition but a limited one, a rare one that undoubtedly (particularly since we charge nothing for it) will increase in value as the years go by. See, in particular, the subsection titled "On judicial swimsuits and the Rules of Judicial Conduct."

    Court family mourns sudden death of 'charismatic' case facilitator. "Doug Jones, the first court facilitator for Hinds County [Mississippi] who managed to expedite cases in a system with an overwhelming number of unpaid fines and outstanding warrants, died in Franklinton, La., early Saturday. Jones, 42, is believed to have died of a blood clot...He had been on a weekend motorcycle rally and camping event with friends...[People] who knew him said Saturday he was unassuming and charismatic, and commended his ability to create a smooth rapport with judges, investigators and prosecutors...." More (Jackson Clarion-Ledger 10.30.2005). Comment. There are a lot of unsung heroes in and around and courthouse. See, e.g., BurtLaw's Law and Legal Secretaries. And see, Clint Stephens, courthouse custodian -- and more (and entries following it).

    Indicted judge still teaching criminal law to college students. "He has been charged with grand larceny and is suspended from the bench, but that hasn't kept an indicted Brooklyn judge from teaching criminal justice and other civics courses at CUNY, the Daily News has learned. State Supreme Court Justice Michael Garson, who allegedly stole nearly $500,000 from the savings of an elderly aunt, has been teaching at Kingsborough Community College for years...." More (N.Y. Daily News 10.30.2005). Comment. I guess we're supposed to be upset by this revelation. Even judges charged with crimes are presumed innocent. It's one thing to suspend him from judging pending resolution of the charges, which he denies. But the students say he's a great teacher and he says his continuing teaching is a way to demonstrate to the students the meaning of presumption of innocence.

    Law and Order - New Mexico. "A former U.S. marshal has been appointed to succeed [Calvin Shields,] a Rio Rancho municipal judge who last year killed a prowler who police say had been stalking him. The Rio Rancho City Council voted 5-0 Wednesday to appoint James Walker, who will hold the job until the municipal election in March...." More (Albuquerque Journal 10.29.2005). Comment. That's right -- we're suggesting yet another version of NBC's Law and Order franchise, this one set in a semi-urban area, perhaps in New Mexico or perhaps in Minnesota (hint, hint: Fargo).

    Drunk chauffeur with two judges along for the ride. "Police stopped a chauffeur for drink-driving - only to discover he had two judges in his car. Former police detective Dallas Suttie, 63, was twice the drink-drive limit while ferrying the two judges in a limousine to a Sunday morning service at Manchester Cathedral earlier this month...." More (The Scotsman 10.30.2005).

    Panel disciplines three judges. "[Washington's] judicial watchdog panel disciplined three judges Friday for offenses that included money laundering, angry outbursts and taking money for marriages performed during regular court hours. A censure was meted out to James L. White, a former part-time Edmonds municipal judge. He pleaded guilty to money laundering charges in U.S. District Court in July...Another Snohomish County jurist, District Judge Timothy P. Ryan, agreed to an order reprimanding him for taking compensation for performing weddings during regular court hours...The third case involved an admonishment, the lowest level of discipline, for Pierce County District Judge Judy Rae Jasprica for showing anger toward court personnel, lawyers and a litigant...." More (Seattle Post-Intelligencer 10.29.2005). Comment. In other words, "Judge Judy" Rae Jasprica was disciplined for behaving like "Judge Judy" Scheindlin. [See, Adam Cohen on Judge Judy and Judge Hiller Zobel on Judge Judy.] Judge Jasprica "got angry" with a court employee (hmm, details please) and "yelled" at a defendant to "shut up." The panel said that on the days in question her "intemperate behavior created an atmosphere of apprehension in the courthouse." She's going to have to take "classes on 'communications style' and ethics." Without suggesting that Judge Jasprica is a so-called "bully broad," we can't help thinking some people might too quickly jump to the conclusion she is. For our views on "bully broads" & on men who are bullies (we don't like any of them -- well, we like this one -- & have been known to stand up to them), see our 2001 entry titled Are you a 'bully broad'? Wanna get ahead? (scroll down) at BurtLaw's Law & Women.

    The 'great' Missouri Plan. "The names of Pennsylvania Supreme Court Justices Sandra Shultz Newman, 66, and Russell Nigro, 59, will be on the ballot Nov. 8. The judges -- a Republican and Democrat, respectively -- want voters to return them to office for another 10 years each. Though Pennsylvania voters have always retained Supreme Court justices when they come up for approval each’s time to vote no and send a powerful message to those in office that the constitution matters. It’s time to vote no and insist upon a representative democracy. And it’s time to make history." More (From an editorial in the Chambersburg [PA] Public Opinion 10.29.2005). Some related earlier entries, with embedded links: Pay-raise protestors target judges in retention election - More on those huge PA Supreme Court Justices' expense accounts - Will pay raise & expense account scandals affect retention elections in PA? - Did judge's role in judicial pay raises violate ethics rules? Comment. It is because of instances like this that some judges around the country prefer the possibility of facing a specific challenger in an election to the so-called "Missouri Plan," with its retention election (vote yes or no on whether to retain a judge). They reason that some (many?) voters might vote no in a retention election as a kind of protest against judges in general whereas those same voters might favor the incumbent if faced with a choice between him/her and a specific opponent with identifiable flaw of his or her own.

    Judge suspended following indictment. "A day after he was indicted by a Travis County grand jury for filing a false campaign report, State District Judge Amado Abascal III was [suspended] by the Texas Commission on Judicial Conduct...." More (San Antonio Express-News 10.29.2005).

    Saving the truth. "The Black Lawyers Association has 'questioned the wisdom' of Cape High Court Judge Wilfred Thring’s decision to place correspondence between him and the office of the Chief Justice relating to racism in the judiciary in the public domain. The Cape Times reported that Judge Thring had placed all correspondence relating to the festering race row in the Cape Division in the national state archives. This had made the documents public. The Cape Division’s judge president, John Hlophe [who is Black], has been accused of telling colleagues that he gave Judge Thring a sensitive case knowing he would 'fuck it up' and his ruling would be overturned on appeal. The purpose was allegedly to provide 'a lesson in transformation'..." More (Mail and Guardian 10.28.2005). Earlier: South Africa - judges & race. Comment. Judge Thring has been accused of "overt racism." According to the linked story, "[h]is decision to post [the letters] in the archives [is] a way of ensuring that 'others who may one day be interested in ascertaining the truth ... may be able to do so.' He had 'no intention of going down in history as the judge who was publicly accused by his judge president of overt racism.'" We think there's too much judicial secrecy and that many (but not all) things that judges do and say behind the red velour curtain ought not be secret or protected by privilege. See, in this regard, our earlier comments following the entry titled Illinois judges opine on judicial privilege. Justice Black, as death drew near, ordered his son to burn his papers. That was a loss for the truth and history. Justice Blackmun preserved his papers and they have now been made public. His papers have helped shed light, for example, on the often-asked question, Do judicial law clerks 'rule'? That is a gain for the truth and history. We applaud Judge Thring and urge him to place all his papers in the national state archive.

    Judicial prodigy, 8-year-old Shifa Khan. "When taxi driver Shivnarain Pandey, the prime witness in the Gateway blast case, was deposing before the special MCOCA court yesterday, few noticed a small visitor who tiptoed into the courtroom. Eight-year-old Shifa Khan, daughter of defence lawyer Wahab Khan, has been visiting the Sewri and Kurla courts and the Bombay High Court for the past two years. 'During my vacations, I accompany my father to the court hearings. I also attend court on Saturdays, when I have a holiday,' she said...." More (Mid-Day 10.28.2005). Comments. a) Most court-watchers are retired people, mostly men. Visit any large urban courthouse and you'll find them. They often know as much about juries as so-called jury profilers and jury-selection consultants. Smart trial attorneys consult with them. We think it's a great way for retired people to keep active: walk to the bus stop, ride downtown, go to the clerk's office or the administrator's office and find where the juicy trials are, attend them, talk with fellow trial watchers, eat lunch, etc. b) It's nice to see a beautiful young girl learning this way. It's a great way to learn. She's lucky to have a father good enough to set a fine example and wise enough to encourage her in this way. It all reminds me of something I wrote about one of my favorite appellate judges, and a very great one at that, Justice Lawrence R. Yetka, in my essay on him that is part of the volume published in 1996 by the MN State Law Library on his career. See, Burton Randall Hanson, "A Court's Best Friend - Some Observations on the Political and Judicial Career of Lawrence R. Yetka - An Essay in Honor of a Half-Century of Service to the Cause of Justice in Minnesota and the People of Minnesota," The Political, Professional and Judicial Career of Lawrence R. Yetka (MN. Justices Series No. 9, 1996). Here's the relevant excerpt:

Unlike his friend, the late Justice James C. Otis, who was "seemingly born with a gavel in his hand," Justice Yetka wasn't born with a gavel in his hand. One might say, however, that he had politics in his blood and law books to sit on. His father, who was one of the great influences on his life, practiced law in Cloquet, was active in the Nonpartisan League, was an early leader of the Farmer Labor Party, and served as city attorney, county attorney, and state insurance commissioner. Justice Yetka's father spoke the language of politics and public service to his children, making it clear that through public service they paid their "civic rent." And he taught not merely by precept but, more importantly, by example. Young Larry "caught the bug" early on, listening to Floyd Olson on the family's Echo Radio in 1932. At age 10, in 1934, he delivered political campaign literature around town and also started hanging around his father's law office, learning in the process not only how politicians thought and acted but how lawyers thought and acted.

    Judicial candidate receives threatening letter. "When Democratic district judge candidate Laura Cohen saw the purple envelope addressed to her at her Monroeville law office, she thought a well-wisher was sending her a greeting.
Cohen opened the envelope and discovered a threatening letter urging her to pull out of the Nov. 8 election for the open seat serving Monroeville and Pitcairn. District Judge Walter Luniewski is retiring...Cohen, 47, said the envelope and letter that she received on Tuesday were typewritten. The letter was not signed. She said the letter stated: 'Dear candidate, you are hereby to stop running for district judge. If you win and continue your service, you will see what awaits you.'" More (Pittsburgh Tribune-Review 10.28.2005). Comment. I was a judicial candidate in 2000 and a candidate for Congress in 2004. One receives strange stuff sometimes, typically by e-mail these days, when one is a candidate. I didn't let any of it bother me. I've never given a damn what most people think or say about me (although I'll fight like a dog when someone slanders or otherwise tries to hurt one of my friends or someone I love). Moreover, as in everything, there are Emersonian "compensations": the other day a very attractive babe came up to me in the grocery store and said she voted for me. I said, "Oh, I've been wondering who that was who voted for me." Ultimately, most men run for office for the same reason boys play sports -- it's a way, they think on some subconscious level, to attract babes. Sometimes, as the other day, it actually works. Are women similarly motivated when they "run"? I'm guessing Freud might think so, because for him "'sex' is everything," but I don't understand women and just don't know. Jung? He'd say they're just looking for a good anima. :-)

    Judge completes probation in road rage case. "A Connecticut Superior Court judge has completed a mediation program and had charges in a road-rage case dismissed. Judge David Tobin was accused of ripping the windshield wiper off of a Porsche SUV that nearly struck him as he crossed a Greenwich street earlier this month. Tobin, 63, left the courtroom without comment Wednesday...." More (Newsday 10.28.2005). Comment. Judges are people, too. Scratch the surface of any civilized person and you might find a tiger underneath -- or, at least, an angry pussycat. We expect too much if we expect judges to be perfect.

    Former judge sentenced to prison for embezzlement. "A 69-year-old former lawyer and Superior Court judge was sentenced Thursday to four years in state prison after pleading no contest to stealing from elderly clients, including a woman on life support, officials said. Huey Percy Shepard was taken into custody immediately after he was sentenced by Superior Court Judge Patricia Titus...Prosecutors said Shepard also embezzled more than $62,000 from a probate estate and more than $12,000 from a client's settlement check in a personal injury lawsuit...." More (Mercury-News 10.28.2005). Comment. We have sometimes naively wondered how many (if any, we hasten to add) attorneys "disguise" their embezzlement in probate matters by "milking" the estate, exaggerating their hours, striking favorable deals with friends, etc. The answer is, I suppose, no one knows. Here's a link to Google's result for a search using the phrase "milking the estate."

    Suspected Mafia mobsters accused of plot to blow up judge. "Police in Sicily have arrested two suspected mobsters accused of plotting to murder a judge with a car bomb in an attack like the one that killed one of Italy’s most famous anti-Mafia prosecutors in 1992. Renato Di Natale, a prosecutor in the town of Caltanissetta where the bombing was allegedly planned, today confirmed the arrests...." More (IOL 10.28.2005).

    More on Judge Palumbo & the state troopers. "Maryland state troopers said in a report two months ago that Prince George's County District Court Judge Richard A. Palumbo, the focus of controversy in recent days for a decision in a domestic violence case and a voided traffic ticket, caused a two-vehicle accident in Charles County. But they did not issue a citation to him...." More (Washington Post 10.28.2005). Earlier: State trooper improperly voided judge's speeding ticket.

    MN's chief justice vacancy. We've been asked to "reprint" our "advice" to Governor Pawlenty on the vacancy to be created by C.J. Blatz's decision to quit the court at age 51. No need to "reprint" it. It's here: Who will/should the governor appoint to fill MN's chief justice vacancy?

    Nominee 'recalled'? - Harriet Miers' letter to the President. She's withdrawn as nominee. Or is it more accurate to say she's asked the President to withdraw his nomination of her? Or is it even more accurate to say they spoke to each other, agreed on things, and Miers, perhaps with assistance, drafted the letter, which the President accepted? Text (Minneapolis Star-Tribune 10.27.2005).

    Attempt to recall a judge in Oregon. "Proponents of Measure 37, a voter-approved ballot measure that allows property owners to seek waivers from land-use zoning laws or get compensated, are seeking to recall a judge [Marion County Circuit Judge Mary Mertens James] who ruled that the law was unconstitutional..Former Oregon Supreme Court Justice Edwin Peterson said [that] 'Recall is a very strong medicine and undercuts in a very substantial way the independence of the judiciary.'...In the past 20 years, 68 petitions have been filed with the secretary of state against state officials, but only 10 of them were returned with sufficient signatures to force recall elections. Of those 10, six were successful in removing officials, including a judge in Union and Wallowa counties. The others failed, including recall attempts against two judges in Southern and Eastern Oregon...." More (Salem Statesman-Journal 10.27.2005).

    T.R. on the recall of judges. On 03.20.1912, Teddy Roosevelt gave a speech in Carnegie Hall titled The Right of the People to Rule. Here's what he said about the recall of judges:

My opponents charge that two things in my programme are wrong because they intrude into the sanctuary of the judiciary. The first is the recall of judges; and the second, the review by the people of, judicial decisions on certain constitutional questions. I have said again and again that I do not advocate the recall of judges in all States and in all communities. In my own State I do not advocate it or believe it to be needed, for in this State our trouble lies not with corruption on the bench, but with the effort by the honest but wrong-headed judges to thwart the people in their struggle for social justice and fair dealing. The integrity of our judges from Marshall to White and Holmes -- and to Cullen and many others in our own State -- is a fine page of American history. But -- I say it soberly -- democracy has a right to approach the sanctuary of the courts when a special interest has corruptly found sanctuary there; and this is exactly what has happened in some of the States where the recall of the judges is a living issue. I would far more willingly trust the whole people to judge such a case than some special tribunal-perhaps appointed by the same power that chose the judge -- if that tribunal is not itself really responsible to the people and is hampered and clogged by the technicalities of impeachment proceedings.

Comment. So you'll know my biases, I'm a liberal Abe-T.R.-Ike sort-of Republican. It's always refreshing to read one of his speeches. He was a true "heavyweight." T.R. saw no need for the right of recall in New York State in 1912. I see no need for it in Minnesota now. We have three ways to remove judges here: a) every six years a judge must run for election if he wishes to continue as judge (and a judge who takes office by appointment to fill a vacancy must run earlier); b) any judge may be impeached; c) any judge may be removed by the state supreme court on recommendation of a judicial conduct commission. If option a) were not available, the argument for recall of judges would be stronger. I see no need for it now.

    Joe Wopner takes on Arnold. "Opponents of Gov. Arnold Schwarzenegger's attempt to change the way legislative districts are drawn are using retired Judge Joseph Wapner, former star of the television program The People's Court, in commercials attacking the ballot initiative and its corporate supporters. The three television ads, which began running Monday in most of the state, accuse oil and insurance companies, developers and Wal-Mart heirs of contributing heavily to Yes on 77 committees to elect lawmakers who will support their agendas...." More (Mercury News 10.27.2005). More on California's Prop. 77.

    O'Flaherty is still doin' it. Last week we posted an item about a VA judge, Ian O'Flaherty, who's been dismissing DUI cases right and left, causing a local prosecutor, Robert Horan, to feel "stymied." See, DUI law is unconstitutional in one judge's court & prosecutor feels stymied. Today we bring you two amusing quotes, one of the prosecutor, one of O'Flaherty:

Horan speaks. "We've been really racking our brains, trying to come up with some solution to it," said Robert F. Horan Jr. (D), the county's longtime chief prosecutor. "It's a crazy situation. He is, for all practical and legal purposes, the Supreme Court of Virginia in these cases, even though, on the Supreme Court, it would take four of him" to issue a majority opinion invalidating a statute.

O'Flaherty speaks. No other judge in Fairfax -- or elsewhere in Virginia, as far as can be determined -- has joined O'Flaherty. But the judge said some other jurists have told him they agree with him. "I had one judge tell me, 'I'd rule that way, but I don't have the guts to,' " O'Flaherty said. "I told him, 'You should be driving a truck.' "

More (Washington Post 10.27.2005). Comment. With the tough, sometimes too-tough, enforcement of judicial conduct rules these days, perhaps the "other jurists" fear they might indeed wind up driving truck if they follow O'Flaherty's path.

    State trooper improperly voided judge's speeding ticket. "A Maryland State Police trooper was 'counseled' this year after he deviated from official procedure by voiding a speeding ticket [59 mph in a 35 mph zone] he'd written for Richard A. Palumbo, the Prince George's County judge facing criticism for dismissing a protective order against a man who three weeks later allegedly set his wife on fire...Fewer than 0.5 percent of the 1.2 million traffic citations that Maryland law enforcement officers write annually are voided, said Rita Buettner, a spokeswoman for the District Court...." More (Washington Post 10.26.2005). Update. Judge Palumbo, 67, has been placed on administrative leave by the chief judge pending further investigation. More (Washington Post 10.27.2005).

    Correlation between making political donation and being appointed judge? "There may be a correlation between being named a federal judge and making financial donations to the Liberal Party of Canada [according to] Federal Justice Minister Irwin Cotler. But Cotler...added there is no proof that partisan activity plays a role in nominating judges to a federal bench...." (Emphasis supplied). More (CFRA 10.26.2005). Comment. Who would have thought they'd be connected? For our views, see Blatz blazts politicization of judicial campaigns.

    More on Rep. DeLay's motion for a new judge. "[Ret.] Judge C.W. 'Bud' Duncan Jr. [81], who will decide whether the judge hearing the case against former Majority Leader Tom DeLay (R-Texas) can deliver an impartial ruling despite donating to several Democrats, has contributed to past campaigns of Sen. John Cornyn (R-Texas) and a Democratic state legislator, according to data compiled by Texans for Public Justice (TPJ)...Andrew Wheat, TPJ’s researcher, said the bigger conflict in the Texas judicial system stems from the tendency for lawyers and law firms to cut checks to judges’ campaigns and then appear before their courts. 'There’s not a respectable judge who is going to buy [DeLay's] argument because there are far greater conflicts,' Wheat said...." More (The Hill 10.26.2005). Earlier: Republican DeLay, prosecuted by Democrat, complains judge is Democrat. Comment. Some political commentators, believing the motion has no chance of being granted, wonder why DeLay is making the motion. It's a BurtLaw Rule-of-Thumb that if a judge knows that the public identifies him with "one side" in a case, he will "bend over backward" to be fair to "the other side," in this case DeLay. Looked at in this way, the motion makes perfect sense. Moreover, DeLay ought to hope that if the indictment is dismissed, the judge who does it is a "Democrat judge."

    Judge sits on jury in med-mal case, jury finds for defendant. "Nassau County, N.Y., District Judge William J. O'Brien last week heard a medical malpractice case from a decidedly different point of view -- as a juror. He was one of six selected to hear the matter of Jacoby v. Doe, No. 16082-2003, which pitted an elderly Franklin Square woman against the hospital that her attorney said failed to aggressively treat her after she suffered a stroke...." More (N.Y. Lawyer 10.26.2005). Comment. The trial lasted 12 days, which meant the court system had to do without the judge's services as judge for a couple weeks. On the other hand, as I can testify having sat on a jury myself in a personal injury case, lawyers and judges can learn a lot about the system, including what needs improving, by serving as a juror. Most judges who are called for jury duty don't get selected. Still, I think it'd be good if every judge had to sit in the boring jury room for a week or two, if for no other reason than to see how the system wastes the time of the good citizens who don't try to get out of jury service.

    Should we send all judges and legislators to jail? My answer is yes. Judges are getting specialized training in the sciences (more). How about a little real-life experience on the other side of the bench? In the same vein as my comment that all judges ought to have to spend time on jury duty (supra), I think it wouldn't hurt if every judge (and, more importantly, every "tough-on-crime" legislator) were required to serve a week in jail, just so he would have some minimal understanding how long a day or a week or a year in prison really is. Frank Lloyd Wright, the great but eccentric architect (aren't all highly creative people eccentric?), made this argument in his Autobiography (1932), which I read a year or two ago. He spoke from experience: In 1926, while his suit for divorce from his second wife was pending, Wright and his future wife, Olgivanna, were arrested here in Hennepin County Minnesota (at the instigation of his wife) for allegedly violating the Mann Act (the so-called "White Slave Act") and spent a few nights in the Hennepin County Jail.

    More on the Mann Act. "The Mann Act made it a crime to transport women across state lines "for the purpose of prostitution or debauchery, or for any other immoral purpose." While designed to combat forced prostitution, the law was so broadly worded that courts held it to criminalize many forms of consensual sexual activity, and it was soon being used as a tool for political persecution of Jack Johnson and others, as well as a tool for blackmail...." From an excellent summary of the events that led to the Mann Act, the prosecutorial abuse of the act, and the U.S. Supreme Court's shockingly-broad interpretations that allowed the abuse of the act, including in cases like Wright's. The summary is part of the PBS website devoted to Ken Burns' documentary Unforgivable Blackness, about Jack Johnson. Full text of Act.

    Judges getting specialized training in sciences. "Anticipating that today’s scientific innovations will be tomorrow’s topics of litigation, two dozen Maryland judges are getting a crash course in the life sciences. Twenty-two circuit court judges and one judge from each appellate court have joined with Ohio jurists to form the Advanced Science and Technology Adjudication Resource Center. The idea is to prepare the judges to understand cases involving complicated scientific matters and to serve as resources for their colleagues..." Details (Maryland Daily Record 10.26.2005).

    China getting more careful, cautious about death penalty. "China's Supreme Court will no longer permit provincial courts to review death sentences so as to ensure that capital punishment is meted out meticulously and fairly, Chief Justice Xiao Yang, also president of the Supreme People's Court, said in Beijing Tuesday. 'The death sentence is the most serious level of penalty for criminals. It is reserved for felons guilty of the most atrocious crimes,' Xiao said at a legislative hearing on court work. China still practices capital punishment as a deterrent to preserve social stability, but 'as few executions as possible should be carried out and as cautiously as possible, in order to avoid wrongful executions,' the top judge said...." More (The People's Daily 10.26.2005). Comment. Of the judicially-decreed executions, 90% take place in "the big four": China, Saudi Arabia, the USA (in 3d place) and Iran. It is a sad comment on our country that it is allied with these three countries and Third World countries like Sri Lanka on this issue. No, it is a sad comment on our country that it is even on the list of countries that still allow execution. If you look at the list you'll see that most of the countries that have the death penalty are countries you wouldn't want to visit, much less live in. On the other hand, our enlightened Western European allies are uniformly opposed to the death penalty. More at BurtLaw's Law & Capital Punishment. And see, the archived position paper on Crime & Punishment from my 2004 campaign for Congress. With even China moving away from it and perhaps eventually abolishing it, the day may come when our great country, which used to pride itself on being the Beacon of Life, Liberty and the Pursuit of Happiness, will be no longer be thought of as an example worth following on much of anything.

    Itchy courthouse workers decontaminated, sent to hospital. "Authorities closed a government office building on Monday and sent workers to a local hospital after some of them broke out in itchy rashes. Doug Tackett, emergency management director for Pike County [KY], said 18 employees in the Pike County Courthouse Annex at Belfry went through a decontamination process and were sent to South Williamson Appalachian Regional Hospital for observation...." More (Kentucky.Com 10.25.2005). Comment. The employees were required to remove their clothing, shower and then put on coveralls before being taken to the hospital. No word on what caused the rashes and itching. We hope it wasn't someone's hound's fleas.

    Jury acquits one judge of domestic assault; another charged:

   a) "A Grundy County [IA] judge charged with domestic abuse was found [not guilty] Friday [by a Marshall County jury]. Jeffrey Harris, an associate judge for Iowa's first district, was charged in April with domestic abuse after a reported incident with his wife, Denise...." In April she told police he pushed her and took her cell-phone during an argument in March. More (Waterloo Cedar Falls Courier 10.25.2005).

   b) Meanwhile, a special prosecutor will be named to prosecute Sumter County Georgia Judge Rucker Smith, who was arrested in August for misdemeanor battery after his girl friend told police he "knocked her down several times, threw her off the porch and choked her" (quoting the news report). More (WALB-TV 10.24.2005).

    Judge apologizes for drunk driving, violating court order. "A district judge [Jeffrey Langton] in Ravalli County [MT] apologized for driving drunk and violating a court order earlier this year after a rare public reprimand Tuesday by the State Supreme Court...." Langton pleaded guilty in March to drunk driving (.197). His sentence required him to "stay out of bars and casinos and consume no alcohol for one year. Less than four months later, he was found passed out near a hotel room in Missoula...." More (Billings Gazette 10.25.2005).

    Two judges scolded for preferential treatment; one of two, for racial slur. "The [South Carolina] Supreme Court has reprimanded two area judges [Charleston County Magistrate James B. Gosnell and Charleston City Judge Joseph Mendelsohn] after [Gosnell] gave preferential treatment to [Mendelsohn] by arranging his early release in a drunken driving case [in 2003]....Gosnell also was reprimanded for using a racial slur in court, an affront that the justices said influenced their decision to make the reprimand public...." More (The State 10.25.2005).

    FLA judge recuperating from injuries in Afghan blast. "Okaloosa County Judge T. Patterson Maney [57], an Army Reserve brigadier general, says he is gradually improving after being injured two months ago in a roadside bombing in Afghanistan...." More (Bradenton Herald 10.25.2005).

    Illinois judges opine on judicial privilege. "The [J]ustices of the Supreme Court of Illinois have an 'absolute privilege' to keep secret any memos and documents they circulate among themselves, a state appellate court ruled Monday. The ruling comes as part of a libel suit Chief Justice Bob Thomas filed against the Kane County Chronicle and columnist Bill Page [over articles] accusing Thomas of misdeeds in the disciplining of former Kane County State's Attorney Meg Gorecki...." Thomas argues he needs relevant documents to defend himself. The court said defendant is entitled only to a description of the documents and communications not disclosed and specification of privilege claimed. "'Judges cannot be burdened with a suspicion that their deliberations and communications might be made public at a later date,' Justice Thomas Hoffman wrote. 'Because it is the public who benefits from the impartial and independent resolution of matters which come before a court, the communications between judges and their colleagues and staffs are among those which ought to be protected for the public good.'" More (Chicago Sun-Times 10.25.2005). Comments: a) The underlying problem in this case is the chief justice's defamation suit, which we believe ought not be allowed. "Page's attorney Steve Mandell said it was unfair to allow Thomas to bring a libel suit about columns concerning what happened behind closed doors without allowing the columnist access to documents shedding light on what happened behind the closed doors." We not only agree with that but we go further and believe that the cause of action for defamation ought to be abolished as inconsistent with the First Amendment. See, Spicing up the courts, and links therein. b) Moreover, we believe greater attention ought to be paid by legal scholars to whether it really is in the "public interest" that judicial privilege -- which judges claim so broadly for themselves and then judge the claim themselves -- be so broad (and, arguably, unthinkingly so). Some of my views may be found in mini-essays titled "Sunshine and fresh air as judicial disinfectants" and "Let the sun shine in" at BurtLaw's Law and Everything Else - Court Gazing V (scroll down). c) If plaintiff prevails in the Illinois courts in this case, we hope the matter will be appealed to the federal courts. It doesn't appear to be just for the Illinois courts to allow the Illinois Chief Justice to both sue and use privilege to prevent the press from obtaining the information it needs to fairly defend itself.

    Dethroned political boss won't talk in buy-a-judgeship probe. "Dethroned Brooklyn Democratic boss Clarence Norman doesn't know anything about alleged payoffs for judgeships and will not be talking to prosecutors, his defense attorney said Monday. In an interview with Newsday, defense attorney Edward Rappaport said he informed aides of Brooklyn District Attorney Charles J. Hynes yesterday that his client will not submit to any secret debriefing about judicial corruption...." More (New York Newsday 10.25.2005). Earlier: Two new judges named in buy-an-appointment scandal.

    Homer Simpson on Earl Warren. Doing a Google search for something else, I serendipitously came upon this amusing bit from one of the episodes of The Simpsons:

Marge:    Do you want your son to be Chief Justice of the Supreme Court or a sleazy male stripper?
Homer:    Can't he be both, like the late Earl Warren?
Marge:    Earl Warren wasn't a stripper!
Homer:    Now who's being naive?

More (Amazon.Com).

    Judges' pay raise to be paid by higher court fees? "Court costs and motor vehicle registration fees would increase to finance a $9,000-a-year pay raise for judges and help fund the state’s law enforcement training center, under a proposal adopted by a legislative committee...." More (Lawrence KS Journal-World 10.25.2005). Comment. Article XI of the Massachusetts Declaration of Rights states that a person "ought to obtain right and justice freely, and without being obliged to purchase it." We believe in the literal meaning of those words. Filing fees, etc., are already way too high and have the effect of making the court system seem to many ordinary people to be an instrument of the rich and well-off. We believe, first of all, that the judicial system ought not be allowed to set court fees. Kansas has that part right. It is a "taxing" and therefore a legislative function. But, and this is our second point, society at large, through the general revenue, ought to pay for the court system. The court system, and certainly not judicial salary increases, ought not be financed by hidden taxes such as filing fees.

    Explosions outside courts in Spain. "Spanish authorities blamed the armed group Eta for small devices that exploded outside four courts in the Basque and Navarra regions early today, causing little damage and no injuries...." More (Ireland Online 10.15.2005).

    Bomb squad disables device at VA federal courthouse. "A suspicious package that contained what authorities believe was a bomb was seen in the mail at the U.S. Courthouse yesterday and handled by the Richmond police bomb squad. U.S. Postal Inspector D.E. Wood said the return address indicated the package came from a federal prison. 'We believe it's an actual device,' Wood said...." More (Richmond Times-Dispatch 10.25.2005).

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Affiliated Web sites

   U. Mich. L. Library's Roberts links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by John Glover Roberts, Jr.  They are categorized and are arranged in reverse chronological order within each category.

   Slate's list of Judge Roberts resources. Slate has created a John Roberts Roundup, a regularly-updated page of links to some of the better web postings relating to Judge Roberts. Click here.

   U. Mich. L. Library's Miers links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by Harriet Ellan Miers.  They are categorized and are arranged in reverse chronological order within each category.

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