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.
A 'Marti' toast to a great judge and grand friend. H. L. Mencken was serious when he called the Martini "the only American invention as perfect as a sonnet." (Source: Review in The Toronto Star of 12.06.2005 by Nicholas Pashley of Christine Sismondo, Mondo Cocktail: A Shaken and Stirred History.) Believe it or not, I've never had a Martini, but today I'm drinking a virtual Martini toast to a departed friend and connoisseur (but prudent consumer) of Martinis, the late Justice Mary Jeanne Coyne (1926 - 1998), whose birthday is today, December 7. That's Coyne on the left in one of the pics on a roll of pics I took of her in 1996. I was privileged to work closely with her during her tenure on the Minnesota Supreme Court, from 1982 to 1996 -- when she retired and was succeeded by Kathleen Blatz, now the court's chief justice (who is quitting at the end of the year at age 51). "The Coyner," who died on August 6, 1998, was perhaps the smartest judge of the many fine judges I worked with in my 28+ years as aide and adviser to the court. I'm not alone in this: my main mentor at the court, the late Justice C. Donald Peterson, no slouch himself, publicly declared after his retirement that she was the smartest judge with whom he had served in his nearly 20 years on the court. She was also a wonderful combination of the tough and tender, as are most of the people I admire and love. She had an exterior that intimidated some, but to those of us who were fortunate to know her "up close and personal" -- well, I'll just speak for myself -- she was the warmest and wisest and wittiest of people. It is perhaps Justice Coyne's fate to be remembered, on the internet at least, for her statement that "A wise old woman will make decisions in about the same way as a wise old man," which is quoted frequently by Justices Sandra Day O'Connor and Ruth Bader Ginsburg, and others. Someday I plan on writing an essay that will explain in detail why I think she deserves to be remembered apart from & beyond her having been brilliant and having uttered a memorable quote.
More courthouse bomb threats on east coast. a) "Danbury Superior Court was among three Connecticut courthouses evacuated Tuesday morning after callers said that bombs had been placed in the buildings...The incidents in Danbury, Bridgeport and Derby marked the third consecutive weekday day that courts somewhere in the state were affected by bomb threats. Tuesday's evacuations occurred as the 28-year-old Willimantic man accused of bringing the entire system to a halt on Friday appeared in Danielson Superior Court...." More (NewsTimesLive 12.07.2005). b) "An anonymous man called Framingham Police from a Marlborough pay phone Monday, warning of an attack on a Cambridge [MA] courthouse yesterday. The threat forced an intensive search of three different courthouses, the closure of two Cambridge streets and deployment of extra security. Investigators do not believe the unidentified caller was personally threatening an 'attack on a Cambridge courthouse,' but rather trying to protect people from one, Middlesex sheriff spokesman Mark Lawhorne said...." More (MetroWestDailyNews 12.07.2005).
Meanwhile, it's Christmas at the courthouse.... Here's a description we came across on a county website of the annual "Spotslvania County, VA County Courthouse Christmas and Luminaria," held last Sunday:
3rd Annual - Courthouse Christmas and Luminaria - 4:30 p.m., Sunday, December 4, 2005 - In Front of the Old Courthouse - The Old Bell will ring for the beginning of the season and the Christmas tree in front of the Holbert Building will be lit. The program will be a caroling concert featuring the choirs of Christ Episcopal Church, Sylvannah Baptist Church and Zion United Methodist Church. There will be over 500 luminaria outlining the Courthouse green.
Meanwhile, in Beaver County, PA:
There won't be big inflatable figures of Santa Claus or Frosty the Snowman on the Beaver County Courthouse grounds this Christmas season. Commissioners Chairman Dan Donatella has nixed the annual display after comments made last month by Deborah Sturm, a Raccoon Township resident who wants to place a creche on county property. In denying Sturm's request, one reason given by county solicitor and judge-elect Deborah Kunselman was that the county didn't want to clutter its property with any displays, religious or otherwise. Sturm replied by questioning the installation of the inflatable figures. 'Why are they willing to clutter (county property) with that?' she asked. Donatella responded to Sturm's point by canceling the annual display. He also said county solicitors have been charged with creating a new policy governing decorations and displays outside the courthouse and in departments under the commissioners...Row officers, however, should be left to set their own rules, Donatella said. 'They are the elected officials,' he said. The county courts would also be left to make their own policies, Donatella said...."
Inside the courthouse, it's another story, with Christmas "stuff" all over the place. Read on... (Beaver County Times 12.05.2005). What's the picture in Bandera, TX, "The Cowboy Capital of the World"? You asked -- we'll tell you:
Having seen each and every one of the 25 Shopper's Jubilee events that have been held in Bandera over the past quarter-century, Margaret Paradee has the first-hand experience to judge the success of the business-boosting promotion. She has declared this year's event, held Dec. 2, as being the 'best yet'...Christmas decorations were provided by the Chamber of Commerce. The animals for the nativity were provided by Alberta Hilseberg of Pony Parties Anywhere. The Bandera Electric Co-op and Bobby Reagan provided the electrical work and equipment for putting up the courthouse Christmas tree. Quality Ironworks provided the star that adorns the top of the tree. [Genie] Strickland said that big things are planned for next year's event, and event subtly mentioned the teaser that the Bandera County courthouse is 'the only courthouse in the Hill Country that is not fully lit,' and that she is hoping to change that by next year....
Judges in PA challenge repeal of controversial pay raises. "A second judge challenged the Legislature's repeal of a controversial pay-raise law as unconstitutional Tuesday, asking Pennsylvania appeals courts to reinstate raises for the more than 1,000 state judges. The law, passed in the dead of night on July 7 without debate or public hearings, boosted the salaries of more than 1,300 judges, lawmakers and senior executive branch officials...The judges' challenges revolve around a passage in the Pennsylvania Constitution designed to prevent lawmakers from docking the pay of judges as punishment for unfavorable rulings...." More (Washington Post 12.06.2005). Comment. One of two supreme court justices up for a retention vote lost his seat in the recent election as a result of the pay raises and revelations about the justices' expense account practices. See, Reining in supreme court justices' expense account spending? and multiple embedded links to previous stories.
Judge puts man on probation, witnesses violation 30 minutes later. "When Circuit Judge William Syler put Jacob V. Vandeven on probation Monday morning for drunken driving, he ordered him not to drink. But less than a half-hour later, Vandeven was seen [by Syler] hoisting an adult beverage at Tractor's Classic American Grill in Jackson...The restaurant [Vandeven] chose...is the same one Syler chose for lunch with deputy circuit clerk Karen Nabe, court reporter Sheilia Irvin and probation officer David Bertrand. All four were in court when Vandeven received his sentence. Syler issued a warrant for Vandeven's arrest Monday afternoon...." More (SEMissourian 12.07.2005).
Access to public court files is free but there's a catch. "Imagine going to a public library to research the life of George Washington -- but you can't search the card catalogue or a computer to figure out which books you need. The librarians have a computerized catalogue, but they won't let you use it. And they won't fetch any books unless you know the exact titles or Dewey decimal numbers. That Catch-22 has been the situation in courts across New Hampshire for nearly two decades. Now there's a new wrinkle: If you want the clerks to search the 'catalogue,' they can charge a fee: $10 for computer searches of fewer than 10 names and $25 an hour for more names or more extensive searches in the superior and district courts...Ed Domaingue, managing editor for news at the New Hampshire Union Leader, said the dockets should be public as well. Other states have public computer terminals in courthouses or public Internet access to their dockets. 'It works other places -- what the hell's wrong with New Hampshire?'" More (Boston Globe 12.06.2005).
Judge tumbles off cliff and falls 140 feet into Lake Ontario. "A judge stricken with dizzy spells from a mugging two months ago tumbled off a 140-foot cliff into Lake Ontario and spent an hour shivering on the rocky shore before being rescued. John Connell, 58, a veteran Monroe County judge, was walking in the back yard of his lakeside home in Webster, a Rochester suburb, when he slipped and fell down the steep incline on Sunday, fire officials told the Rochester Democrat and Chronicle. He landed in the water, escaping serious injury, and climbed up on the shore. His family returned home to find him missing, spotted him near a dock and alerted firefighters, who rescued him using a basket attached to ropes. He was treated at a hospital overnight for hypothermia...." More (Newsday 12.06.2005). Background. a) The mugging, in October, occurred when Connell went outside late one evening to check on something in his yard and someone hit him on the head with a blunt object near his woodshed. More (WHEV-TV 10.09.2005). According to the Newsday story, "In 1988, Connell was attacked in his chambers by a knife-wielding man who was never captured. He fought off his attacker with kicks and punches and escaped with minor cuts on his neck, face and hands." Similarly, the person who attacked him in October hasn't been identified or caught. Id. b) Judge Connell is no stranger to the waters of Lake Ontario. On October 12, 2004 the Rochester NY Daily Record published a profile (via FindArticles) of the judge that focused on his then 23-year love affair with scuba diving, including in the cold waters of Lake Ontario. "I can't think of anything more relaxing than the silence and weightlessness experienced on a dive," he was quoted as saying. The article also noted, "The temperature of the water doesn't seem to affect Judge Connell. Of course, he wears a wetsuit for his dives...."
Judge's letter in Ric Flair divorce case stirs up wrestling fans. Ric Flair, the pro wrestler, is in the midst of a divorce down in North Carolina. The judge in the case, Jane Harper, recently wrote a letter to the attorneys instructing one to prepare an order giving temporary maintenance to Flair's spouse in the amount of $20,000. In the explanation of her calculations she said she included $200 a month for religious contributions. Here's how she put it: "[R]eligious contributions, $200 (whether she makes this or not, I've included it to encourage someone in this family to share a tiny smidgen of their huge wealth with someone besides themselves)." An article in today's (12.06.2005) Charlotte Observer about the public response says, "It's not the first time she's suggested that wealthy divorcing couples should be a little more generous with their charitable contributions, [Judge Harper] said. 'It's probably none of my business,' Harper said, 'but sometimes I just can't help myself.'" The article quotes Frank Krewda, a senior writer with Pro Wrestling Illustrated, as saying, "Flair earns his money honestly and legally. It's none of this judge's business whether or not the Flairs share their money with anyone else. It's a shining example of a judge using her socialist principles and her position of power to hurt the wealthy." Comment. Flair is from MN, where his dad, Dr. Fliehr, was an obstetrician in the ob/gyn group practice that included the doc who delivered my two kids. The Wikipedia entry on Flair is detailed and offers insight into pro wrestling. Excerpts from a list of Flair quotes: "Because I'm Ric Flair --and you're not!"; "This is Flair country!"; "They don't call me the dirtiest player in the game for nothing"; "I'm every woman's dream and every man's nightmare." As to the accuracy of the last quote, see Divorce Papers Allege Violence In Ric Flair's Marriage (WSOC-TV 11.30.2005):
In May, his wife, Beth, filed for divorce claiming Ric slapped, kicked, choked, and bit her. She also alleges both steroid and alcohol abuse. Also in the court papers were Ric's legal responses to Beth's claims. He says that his wife had assaulted him more than once, "striking him about the head and body." He also said he "feared for his physical and emotional safety." But...[i]n Chapter 10 [of his 2004 autobiography, To Be The Man] he says, "I'm lucky to be her husband." He ends his book saying, "Beth has endured more than a woman should." He continued, saying he planned "on spending the rest of his life proving to her that diamonds are forever."
Have gavel will travel? "A Pickaway County judge has become known for making late-night trips to the hospital to give police an opportunity to get a blood test from people suspected of driving drunk who refuse a breath test. Municipal Judge John Adkins said he wants people to know that the county is not a friendly place for people who drink and drive...Law enforcement agencies in the county do not hesitate to contact Adkins to get a ruling on whether a blood test is allowed for suspects...Adkins, 61, has made the late-night trips about 30 times this year...." More (Canton Ohio Repository 12.06.2005). Comment. By advertising his availability, by going to the hospital rather than making police come to him, by stating that his aim is to send a cautionary message to would-be drunk drivers, and by the frequency of his trips to the hospital, the judge -- some might argue -- risks creating the appearance, at least, that he is an arm of law enforcement rather than neutral arbiter. We don't question the judge's sincerity or character, but if we were representing someone whose blood was extracted pursuant to a "Judge Adkins Warrant," we'd have to at least consider challenging it on grounds the judge maybe isn't, or doesn't appear to be, the neutral and detached magistrate required by the Fourth Amendment.
Will judge lose 'dream job' over one ruling? "Since Marion County Judge Mary Mertens James pulled the rug from under Measure 37, land-use rights advocates have been trying to pull the rug from under her. Property owners are talking recall and trashing her in Web sites that are gathering cash to get her off the bench...On Oct. 14 she ruled that Measure 37-- which required governments to either pay landowners when regulations reduced the value of their holdings or to allow the development they had requested -- was unconstitutional. Twelve days later she learned of the recall petition, which accused her of disregarding the expressed will and 'God-given right' of Oregonians...." More (The Oregonian 12.06.2005). Comment. Did anyone think of just appealing her decision?
Sis of judge murdered by Mafia runs to be governor of Sicily. "The sister of a prominent judge, who was murdered by the Mafia to end his campaign against organised crime, is to stand as a candidate in next yearís elections for a governor in Sicily. Rita Borsellino has been chosen as a candidate for the centre-left opposition against Salvatore Cuffaro, the incumbent, who is now standing trial on charges of aiding the Mafia...." More (UK Times 12.05.2005).
Tax scam promoter 'Judge Rizzo' and wife get prison. "Tax scam promoters John J. Rizzo and his wife, Carol A. Rizzo, were sentenced, respectively, to 43 months in prison followed by three years of supervised release and 24 months in prison followed by three years of supervised release in connection with a tax evasion scheme, the Department of Justice and Internal Revenue Service (IRS) announced today...On February 4, 2004, John J. Rizzo -- a former municipal court judge -- and Carol A. Rizzo each pleaded guilty to conspiring to impede and impair the IRS in the ascertainment and collection of income tax and willfully failing to file a federal income tax return for 2000. John Rizzo also pleaded guilty to felony charges of willfully aiding and assisting in the preparation of a false income tax return and perjury before the grand jury...At an earlier court hearing, a videotape was played showing Mr. Rizzo appearing at Global Prosperity seminars wearing judicial robes and portraying himself as a former judge and an expert on tax law...." More (U.S. Newswire - DOJ Press Release 12.05.2005).
Annals of judicial independence and accountability. News out of Georgia -- no, not our Georgia but the Georgia that once was part of the U.S.S.R.:
News broke on December 6 that at least five judges of the Georgian Supreme Court filed resignation...According to the amendment to the law on Supreme Court of Georgia passed by the Parliament and signed by President Mikheil Saakashvili on June 23 2005, those judges of the Supreme Court, who will resign before December 31, 2005, will receive a pension equal to their current salary. Opponents and some judges say that this amendment now serves as a tool of pressure on those judges which refuse to yield authoritiesí pressure.
More (Civil Georgia 12.06.2005). Earlier. Judges say they are under pressure (Civil Georgia 11.23.2005). Comment. It's hard to know what's going on in Georgia. Is the "pressure" some judges speak of part of a legitimate effort to clean up a judiciary that needs cleaning? We don't know. What was behind the pension law, with its deadline? Was the law a means of allowing certain judges a graceful way of avoiding legitimate misconduct inquiries? We don't know. One of the judges who is speaking out is Merab Turava, a judge of the Supreme Court, who is quoted as saying, "These judges are threatened that if they will not resign now they will be deprived of any kind of social security, including pensions." But the article also states that Turava is one of 18 judges being investigated by the "Judicial Discipline Commission" for "suspected misconduct." However, the article notes further that "[O]pponents say that this process in the Judicial Discipline Commission is yet another tool of pressure on judges." As we said, we don't know where the truth lies. Perhaps there's a bit of it on each side. It strikes us that there is an unavoidable, inherent tension between the equally important principles of judicial independence and judicial accountability. Cries by judges of threats to their independence shouldn't necessarily be taken at face value without subjection to critical examination. Similarly, we need also to be vigilant against perversions of the tools and processes of judicial misconduct commissions (as well as lawyer misconduct commission). For more on my views, see my 2000 essay, BurtLaw on Judicial Independence and Accountability.
Man sentenced for threatening to cut off judge's head. "A Huntington Beach man who telephoned police and threatened to cut off a judge's head was sentenced Monday to probation and ordered to take anti-psychotic medication. Ronald Brindle, 68, had pleaded guilty to a felony charge of threatening serious injury to a judge [Thomas Borris] and obstructing police officers...Brindle, who has a history of mental illness, also was sentenced to 342 days he already served in jail and at an outpatient psychiatric facility...[Borris] had placed Brindle on five years probation in 2003 after he was convicted of falsely imprisoning two people who visited his landscaping business...." More (San Jose Mercury-News 12.06.2005).
Alito confirmation hearings on fight promoter's pay-per-view TV? "Supreme Court nominee Samuel Alito, an unbending opponent of abortion rights during the Reagan administration, has negotiated a deal with the Senate Judiciary Committee and Don Kingís TVKO for exclusive coverage of his upcoming confirmation hearing...." More (Dateline Hollywood - Satire 12.05.2005). Comment. This is a funny spoof worth reading; here's one of the lines: "'Itís shaping up to be a great fight with the Democrats getting ready to pounce on Judge Alito for his views on abortion,' said King (D-New York) about the confirmation hearing. 'Plus weíve got a couple of exciting under cards with taped confirmation hearings for some lower courts.'" The Photo Shop-altered pic showing King & Alito together adds a nice touch.
Chief Justice urges judges to go beyond letter of law. No, we're not talking Chief Justice of the United States. We're talking Canada:
Judges should feel 'emboldened' to trump the written word of the constitution when protecting fundamental, unwritten principles and rights, says Canada's chief justice. Beverley McLachlin, in a speech delivered in New Zealand, took on critics who say judges have no business going beyond the strict letter of the constitution to strike down laws and enforce rights. 'The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion,' said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.
More (Ottawa Citizen 12.05.2005). Comment. Most judges have been so cowed by fear of being called "judicial liberals" that they mouth the accepted phrases -- "Judges shouldn't legislate," blah, blah -- even though the phrases, when used to self-describe every judge in America, have become meaningless. We find the Chief's candor refreshing without knowing whether, as judge on the same court, we'd ever agree with him. Woops! We mean "her." We just Googled her & found her official bio & official pic on the Court's official website. She's depicted wearing a robe that might cause her to be mistaken as Mrs. Santa Claus. But she looks good in it. And she's not only a member of my specific birth cohort but, if the pic is fair & accurate, she's a nice looking babe -- er, Chief. Here's a link to a page with another pic of her & links to some of her other speeches. Related. Dahlia Lithwick asks if anyone believes in 'living Constitution' anymore. Query. Will we open the NYT one morning somewhere down the line and read a speech like this by Chief Justice Roberts? Unlikely. That doesn't mean a) his views won't evolve and b) his decisions won't disappoint those who invited him to the ball. Here's a link to a piece from last summer (08.03.2005) in Slate by Dahlia Lithwick that bears on this: The Souter Factor - What makes tough conservative justices go soft? ("Half-baked theories about the drift to the left abound. Here they are, for Roberts' watchers to consider....").
Judge Friendly Redux. Because Chief Justice Roberts clerked for him and listed him as one of his judicial heroes, we posted several items and comments on Friendly last summer: Who was Judge Henry Friendly? and Judge Roberts, Judge Friendly & state statutes on assisted suicide. Today we came across a posting (apparently made today) at RedState.Org that links to a speech quoting from an unfiled draft opinion Judge Friendly wrote in 1970 in a pre-Roe abortion case that was mooted when the New York legislature "liberalized" its abortion law. According to the entry, "On November 11, at the [Barbara K. Olson Memorial Lecture, the day after the] Federalist Society's Annual Dinner, Judge Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit delivered a speech that concluded with thunderous and sustained applause," a speech in which he "recounted in detail his experience as a law clerk for [Judge Friendly]" and "read portions" of Judge Friendly's draft opinion. Comments. I'm having trouble downloading the PDF file of the speech. Perhaps it provides an answer to my question: Was the draft opinion already a public document, available to all, including Judge Randolph, or did Judge Randolph read excerpts from a perhaps still-confidential copy he saved? If the former, ought not the entire draft be posted online? If the latter, was this okay for the judge to do? Update. Here's a link to the speech in html format, which I prefer to PDF. The opening answers my question in part but not completely:
It is well-known that Henry J. Friendly was one of the greatest judges in our nationís history. Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years before Roe v. Wade, Judge Friendly wrote an opinion in the first abortion-rights case ever filed in a federal court. No one knows this because his opinion was never published. I have a copy of the opinion and his papers are now at the Harvard Law School, awaiting indexing. Tonight I want to make this opinion public for the first time. I hope you will agree with me that Judge Friendlyís draft of 35 years ago is not only penetrating, but prophetic. I have read my copy many times over the years. Not because our court hears abortion cases. In my 15 years on the D.C. Circuit I have not sat on a single abortion-rights case. I have read and reread my private copy because it embodies such a clearand brilliant message about the proper role of the federal judiciary, because it is timeless, because it is a classic in legal literature....
I'll read the whole 35 pages of the speech later. I guess the full text of the opinion will appear in the June 2006 of the Harvard Journal of Law & Public Policy, a very good law review that also is allied with the Federalist Society.
Doomsday at the Supreme Court -- imagining the worst. "Call it coincidence, but in the same week that a big chunk of marble fell from the front facade of the Supreme Court, a heavyweight panel of thinkers convened in Washington to contemplate what would happen if all nine justices of the Supreme Court were to be killed at once...." From a piece by Tony Mauro titled "Imagining a Doomsday Scenario for the Supreme Court." More (Law.Com via Yahoo! Finance 12.05.2005).
Those secret courts. No, we're not talking about the President's military tribunals. We're talking family courts in the UK:
The curtain of secrecy hiding what goes on in the family courts of England and Wales is to be lifted, after concerns from senior judges and MPs that it damages public confidence in the administration of justice, the Guardian has learned. The move follows claims by parents accused of child abuse and by divorced fathers denied the right to see their children that the courts are unaccountable and have mishandled their cases behind closed doors.
More (Guardian Unlimited 12.05.2005).
Those slow courts. No, we're not talking about all the delays in American courts, although we could be. We're talking India:
Eminent speakers from the judiciary voiced their strong concern over the inordinate delays in the delivery of justice in India, which was eroding the faith of the people in the system. The speakers who took part in a debate on 'Speeding up the Justice Delivery System,' organised by the Confederation of Indian Industry (CII) and the Supreme Court Bar Association, warned that if remedial measures were not taken immediately, extra-constitutional forces would step in and that would be disastrous.
Probate courts in Texas come under scrutiny. "'The Ward,' as she is identified in some court pleadings, is a wealthy, 85-year-old New Jersey widow who spends her days cloistered with health care workers in an Alamo Heights apartment [in San Antonio, TX]. She is never alone or free to leave. Her phone calls are monitored and visits must be approved by a lawyer. Trips to dinner, even with immediate family members, also must be cleared, and the attendant always comes along. For nine months, Lillian Glasser has been an unwilling captive and the central figure in a contentious family legal fight over her independence -- and her $25 million fortune...." That's the beginning of a fascinating story about a battle between people in New Jersey and Texas, with a number of allegations being made, including allegations of forum shopping and of lawyers turning the case into a cash cow. "'It's a poster child for court appointees enriching themselves off the estate of someone who never wanted to subject themselves to that court,' said Russell Verney of the watchdog group Judicial Watch, which is doing a study of the Texas probate courts." We don't know who's in the right and who's in the wrong but this is recommended reading. More (MySanAntonio.Com 12.05.2005).
Widows of slain judges are given money & promised jobs, housing. "Prime Minister Khaleda Zia [of Bangladesh] donated Tk 0.5 million (5 lakh) each Sunday to the families of the two senior assistant judges killed in the bomb attack in Jhalakati on November 14, in immediate cash assistance to meet their urgent need, reports UNB...." More (Financial Express 12.05.2005). The PM "also assured providing suitable jobs immediately, as per qualifications, to [the widows]" and said the families of the judges "could also continue to live in the government quarters [in which] they were residing."
Filming begins on feature film 'The Courthouse.' The film, a full-length comedy, "revolves around a judge who opens a restaurant and bar in the building where he used to preside." Filming begins tomorrow at the Jefferson County Courthouse in Port Townsend, WA. More (Peninsula Daily News 12.05.2005).
Annals of Massachusetts parochialism. When I was in law school at HLS, we all used to joke about the parochialism of Boston newspapers. There was a joke that if a nuclear catastrophe occurred in Europe, the headline in one of the Boston papers would read, "Boston Man Hurt in European Explosion." Here's a headline that reminds me of all that; I came across today in MetroWest Daily News out of Framingham, MA: "Ex-Framingham man trained Saddam judges." Earlier. Boston man hurt in catastrophe. Cf., our 06.21.2005 entry about Presidential parochialism titled Profile of Texan who's vetting supreme court candidates.
Chief Justice apologizes for political quip. "The chief justice of the [Mass.] Supreme Judicial Court yesterday apologized for a joke she made at the beginning of her commencement speech at Brandeis University in May, when she quipped to spectators gathered beneath blue and white balloons, ''No red states here.' The remark by Chief Justice Margaret H. Marshall, who wrote the court's landmark 2003 decision allowing same-sex marriage, triggered a confidential complaint to the Commission on Judicial Conduct. The commission released an extraordinary statement yesterday from the state's top jurist, who said she regretted making what might have been construed as a political statement...." The Chief says she regretted the quip as soon as it she said it. More (Boston Globe 12.04.2005). Comment. Cut her a little slack. Making a big to-do about stuff like this only makes judges and other grand poobahs more robotic and boring and predictable and cliched in their public utterances than they already are. Say anything fresh and BOOM!, someone complains. To the thought-and-utterance police, I say, "Go stuff it." To judges I say, "Go ahead. Be human. Be yourself. And, in the words of the late Fred Rodell of Yale Law School, 'Squander, don't hoard for some hereafter,/ Your gifts of grace and love and laughter.'"
Annals of judicial stickling - herein of water bottles on the sacred bar table. Tomorrow's Sydney Morning Herald (12.05.2005) contains an amusing piece based on statements in columns written in the Australian Law Journal [to which we do not have access] by Justice Peter Young, Chief Judge in Equity of the Supreme Court of New South Wales, whose apparent obsessiveness on the subject of courtroom etiquette includes an almost fetishistic reverence for what he refers to as "the sacred bar table." In his courtroom in New South Wales "no one can walk between the bar table and the bench and...'no member of the bar would even think of placing a hat or briefcase on that sacred piece of furniture.'" He is particularly incensed at counsel who "cannot make do with the regulation glass and carafe" but instead carry their own water bottles with them to the table. He wrote in one column that one day "he looked down from the bench and saw 'a green bottle of the type that one gets in restaurants at an astronomical price containing mineral water from an Italian spring. What was I to do? My sensibilities had been shocked. How could one listen to a serious argument from a person who did not know how to behave towards the bar table? However there was no precedent for making a scene and ordering my petite female court officer to seize the offender and eject him.'"
A nostalgic look back at another instance of judicial stickling. Back in 2002 we took note of a report of a little hissy fitby Chief Justice Rehnquist over a minor breach of the Chief's sense of courtroom decorum and dignity during an oral argument by spectator Roopa Singh, a 24-year-old second-year law student intern at National Public Radio, who was sitting in the back row of the press gallery taking notes. Singh, who was wearing a scarf, noticed first that Rehnquist was "scowling" at her, then saw him leave the bench, after which a security officer approached her and asked her if she had a religious or medical reason for wearing the scarf. When she said no, the officer asked her to remove it. Singh later complained that Rehnquist treated women and minorities differently than others. A court spokesperson said that the court has a long-standing rule against women wearing "hats" in the courtroom, but, according to a story in the San Diego Union-Tribune dated 03.08.2002, Singh said that Rehnquist "previously ordered women in the press gallery who were wearing pants rather than skirts to sit outside his line of vision." From "Rehnquist Confidential" at BurtLaw's Court Gazing IV (scroll down).
More on judicial stickling. We ran a Google on the subject of "judicial stickling" and "stickling judges." One of the links we got back was to a National Law Journal piece from 1999 by Jonathan Rauch reprinted in Reason titled Read This or I'll Sue You. Commenting on a newspaper editorial praising using the legal process as a "political bludgeon," Rauch said:
In olden times, people didn't talk that way. Stickling judges [italics supplied] and ancient rules pinned lawsuits within narrow bounds. The law required a close and clear connection between one party's failure to do its job properly and another party's real-world harm. If a company made ice cream that clogged your arteries, you couldn't sue, because part of the blame rested with you for eating the ice cream. As for holding an ice cream company liable to the government because your eating ice cream raised Medicare costs -- well, that was comedy, not law. Starting in the 1960s, however, everyone -- Congress, courts, federal agencies, activists, lawyers -- began loosening the old restraints. 'Negligence' came to mean failing to prevent any avoidable harm to other people, even people who were trying to get hurt. Pretty quickly, it got to the point where almost anybody could sue almost anybody for almost anything.
Put that way, we're not against all judicial stickling. For some of our views on the need for that kind of judicial stickling, see, BurtLaw's Lawyers on Parade.
When the chief judge is in the dock. One of the seven other men on trial with Saddam Hussein is a former judge. Here's a brief profile, from Profiles: Defendants in Saddam's trial (Alzazeera.Net 10.20.2005):
Awad Hamed al-Bander al-Saadun. Former chief judge in Saddam's Revolutionary Court, which is accused of organising show trials that often led to summary death sentences. Al-Bander was the judge in charge of trying many of more than 140 Shia men accused of trying to assassinate Saddam as his motorcade drove through the village of Dujail in July 1982. Some were killed in fighting. Al-Bander sentenced many others to be executed.
Is trial of judge charged with presiding at show trials itself a show trial? "Attacks on lawyers and flaws in the Iraqi justice system mean the trial of Saddam Hussein on charges of crimes against humanity will never satisfy international standards, [John Pace, human rights chief at the United Nations Assistance Mission in Iraq] said on Sunday...'We believe that weakness in the system of administration of justice, in addition to the antecedents surrounding the establishment of this tribunal, will never be able to produce the kind of process that would be able to satisfy international standards, Pace said...'We're very anxious about the tribunal. The legitimacy of the tribunal needs to be examined. It has been seriously challenged in many quarters.'" More (Reuter's AlertNet 12.04.2005). Comment. We reprint here our comments of 10.12.2005; our thoughts haven't changed in the interim:
Looks like the trial will be a cut above Fidel Castro's "Roman Circus"-like "show trials" held in outdoor stadiums after he came to power in the 1950's. It also at least will appear to be a cut above the sickening middle-of-the-night videotaped 1989 "trial" of Romanian President Nicolae Ceausescu and his wife Elena by a secret military tribunal, which resulted, of course, in their being found guilty of crimes against the state and their immediate execution by firing squad? On this day - 12.29.1989 (BBC News). Perhaps it will be about on a level with the "show trials" for which the Russians became well known in the 1930s, maybe a cut below the Nuremberg Trials, which Chief Justice Stone referred to as "a high-grade lynching party" and which at least four members of the U.S. Supreme Court "particularly Stone, Black, Murphy and [Douglas] thought...were unconstitutional by American standards." Remarks of Chief Justice Rehnquist at ALI Annual Meeting 05.17.2004 (quoting Justice Douglas). "Show trials" are those which use the trappings of due process and justice to reach a pre-determined outcome, "kangaroo courts" in fact though not in form.
Thinking about mostly-white jury pools on a snowy white day in MN. "Judges can't bring affirmative action to the jury selection process, even if the jury makeup is not representative of the community, the [Michigan] Supreme Court said in a ruling issued Friday. The ruling followed concerns raised about Wayne County judges trying to make sure African Americans are represented on juries for black criminal defendants...." More (Detroit Free Press 12.03.2005).
Comments. Everyone knows there are multiple reasons for poor representation of minorities in juries in places like Wayne County, MI or Hennepin County, MN. One in Wayne County: "A court study shows that 27% of those who report for jury duty are black, while African Americans constitute 42% percent of the county's population and a majority of the defendants in criminal cases." Id.
What to do? The cases say trial judges can't discriminate by excluding Caucasians during jury selection in individual cases in an attempt to get a representative jury. "Chief Judge Mary Beth Kelly said the court is aggressively tracking down people who fail to respond to jury questionnaires -- many of them minorities -- and educating them about the importance of serving." Id. That's important.
Too many courts don't take "no shows" seriously. In a story in the NYT the other day about Pres. Bush's being called for jury duty in his home county in Texas (Summoned for Jury Duty, President Sends His Regrets, New York Times, 12.01.2005), Karen Matkin, the district clerk in Waco, is quoted as saying that "27,600 people were randomly selected for service in the county every year from about 150,000 voters and licensed drivers. About 30 percent end up responding...And those who don't? 'We simply rely on people who do show up,' she said. 'It's a poorly kept secret, but we don't send out arrest warrants.'" And that's one of the problems. We think by its lackadaisical approach to the problem, the court in Waco is opening up some criminal convictions to challenge on appeal. We don't believe in arresting no-shows and tossing them in jail for contempt, as some judges in some courts do. But we like that the court in Detroit is aggressively tracking down and trying to instruct no-shows on their civic duty/opportunity.
And we'd like it if our President took the summons seriously and actually showed up for jury duty. I've been called twice in, say, the last ten years. The first time was while I was doing what I thought was important work for our state supreme court. But I answered the call, as I also did the second time, because the most important office in a democracy is not President or Supreme Court Justice or Deputy Supreme Court Commissioner -- it is, as Justice Frankfurter reminded us, the "office of citizen," and one of the duties and opportunities of citizenship is answering the call to serve as juror. In his dissent in Olmstead v. United States, 277 U.S. 438, 470, 485 (1928). Justice Brandeis wrote that "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." What a terrific example President Bush would have set if he had responded to being summoned for jury service with the same enthusiasm with which he signed all those death warrants as Governor of Texas. Instead, people around the world are seeing headlines like this, from Reuter's: Bush gets jury duty call, says he is busy. Here's how I wish he'd have responded:
Dear Clerk. I'm excited about the opportunity to serve as juror. I'm busy now, as you know, in Washington. But I usually take off the month of August each year to clear brush around the ranch in Crawford. Could you fit me in then? Yours sincerely, POTUS
Two judges incarcerated. "A former Edmonds Municipal Court judge [James White] was sent to prison for a year and a half Friday for laundering dirty money from an accused drug kingpin while his friend [A. Mark Vanderveen], a criminal defense attorney [who also served as a judge part time], got three months in prison for quietly accepting $20,000...." More (Seattle Post-Intelligencer 12.03.2005). Earlier. Two judges plead guilty to federal charges involving drug money. More to come? "A federal grand jury is investigating at least four other Seattle-area criminal defense attorneys over possible money laundering or involvement in the crimes of their clients, according to legal sources and grand-jury witnesses who spoke to the Seattle Post-Intelligencer on the condition of anonymity." Id. Comment. As anyone who regularly reads our postings, the feds seem to feel they have a "roving commission," to use Justice Cardozo's phrase, to clean up state and local government. As I wrote in August with respect to the feds' pursuit of state judges around the country, I guess I'm more of a states'-righter than I thought I was, because I think the feds' claims of jurisdiction to prosecute some of these cases are a little contrived. It all seems so un-Republican, even to this liberal Eisenhower/Rockefeller Republican. But wait! I think the states where all or most of these investigations have occurred are historically Democratic, on the local level, at least. Hmmm. Update. Judge backs fake campaign to nab vote-sellers in W. Va. (Boston Globe 12.04.2005) (while we're not sympathetic to the claim of "foul" by anyone nabbed selling votes, we think allowing this sort of conduct by the FBI is a big mistake that eventually will do more harm than good).
Bomb scare shuts down courts around state. "State police have wrapped up their search of courthouses in Connecticut following threatening phone calls and found 'no indication or problems in the buildings,' a spokesman said Saturday...The threats shut down the state's judicial system and triggered evacuations and bomb sweeps at [all 45] courthouse[s] in the state...." More (Boston Globe 12.03.2005).
Finding judge to try "penis pump case" against judge is proving to be hard. The eyes and ears of the world will be on Bristow, OK if and when the long-delayed MWP (masturbating while presiding) trial of former Creek County District Judge Donald Thompson ever begins. A third judge assigned to try the case withdrew, before the preliminary hearing was to begin, after the defense revealed the judge had talked with a witness about the matter. More (Court-TV 12.03.2005). One gets the impression from reading statements by experienced defense counsel quoted in the Court TV report that the defense will be anything but flaccid. Earlier. Jurors will see sex toys in trial of ex-judge.
More on the uncooperative court reporter. "An Arapahoe County court reporter who quit her job without completing 10 courtroom transcriptions has lost an appeal of her contempt-of-court citation and could face jail. Court reporter Valerie Barnes will request that the Colorado Supreme Court review Thursday's decision, said her attorney, David Lane." More (Denver Post 12.02.2005). Here's a link to the court's opinion. Earlier. What happens when a court reporter quits and transcripts are delayed?
Judicial privilege. Last year about this time one of the big stories in the area of judicial privilege was that at a time of shortage of flu vaccines some judges were given preferential treatment. Today we feature a link to a story about a courthouse in Texas (and we suspect there are scores of them around the country) in which judges enjoy exemption from "no smoking" rules:
The white smoke from the judge's cigarette curled around her head, backlit by the Justice Center windows that don't open. Judge Sarah Garrahan-Moulder is one of several officials who uses the privilege the county gave them 17 years ago when it created a policy that forbids smoking in public spaces of public buildings but allows it in judges' chambers. "I like to smoke. It's very relaxing,' Garrahan-Moulder said. 'We only smoke in the places where the public does not come in."
More (MySanAntonio.Com 12.02.2005). Comment. We bet there are also a lot of courthouses in which some judges smoke in chambers even though they are not exempted from the ban. Query: In this era of "gotcha" politics and "gotcha" enforcement of judicial rules of conduct, might we be seeing some unexempted judges nabbed and disciplined over such "lawless" conduct? One laughs initially at the thought, but cigarette smoke has a way of escaping the confines of a judge's chambers, and some workers or jurors who are allergic to cigarette smoke are affected by it when it does. Indeed, some workers who laugh off some judge's or colleague's feeble violation of the norms against sexual harassment find a judge's or colleague's smoking (or wearing strong perfume or cologne) much more offensive. We know because conduct that might be deemed harassment never bothered or would have bothered us, but we're mildly allergic to both smoke and perfume and get a headache when exposed to either. We can only imagine the effect of either on an asthmatic person or one with a severe allergy. Further reading. See, Judges ask to smoke despite smoking ban (and comment).
Judicial sermonizing. "Two years after a man went to jail as a young offender for the deadly beating of a gay man, a judge [as required by law] freed him Wednesday and urged the victim's family to try to forgive the killer. Judge Valmond Romilly of provincial youth court said the 21-year-old man now needs help to salvage some of his life as he enters adulthood. 'The sole preoccupation at this stage should be to help the youth, who committed a terrible offence, while still a youth,' Romilly said...Just before he read out the man's conditions for release, Romilly said to family members sitting in the gallery that it was 'time to move on and forgive.' He then quoted William Shakespeare's Merchant of Venice: 'The quality of mercy is not strained. It droppeth as the gentle rain from heaven.'" More (Vancouver Sun 12.02.2005). Comment. We admit it, we're "soft on crime" -- at least it would appear so when our views are compared with those of the many unprincipled vote-thirsty office-seekers and office-holders who have learned that posing as "tough on crime" wins votes. So we have no sympathy with those whose simple-minded idea is to "lock 'em up and throw away the key" or "kill 'em." and we have no trouble with embracing goals like rehabilitation. Moreover, we have no trouble with the judge following the law, as he apparently did. And we're all for people "moving on" from their grief, when and if they feel it's time to do so or when and if their psyches permit them to do so. We're also "all for forgiveness," if one can find it in one's power to forgive. But we dislike the cliched thinking typically underlying the expression "moving on" and we would never presume to give advice to grieving people, even friends, to "move on." (The most laughably inappropriate use of the expression we have witnessed occurred some years ago at the funeral of a young person who had died a tragic death. The minister's advice -- at the very funeral, held just days after the death -- was for the spouse and family to "move on.") We think the well-meaning judge in this case might better have kept his mouth shut.
Judge releases index of web sites visited by mayor. "An index of gay-themed Internet Web pages that Mayor Jim West visited from his city-owned laptop computer was released Wednesday...As West has claimed, most visits were made after 5 p.m. or on weekends. West...is the subject of a Dec. 6 recall election because of a City Hall sex scandal involving gay men...." More (Seattle Post-Intelligencer 12.01.2005). Comment. As I said in my extended comments following an earlier entry, Judge releases contents of mayor's laptop, the day will come when we'll look back on cases like this as we look back on the Salem witch hunt and Sen. Joe McCarthy's modern-day witch hunt.
Listening to Justice. "The best part about the oral argument in New Hampshire's Supreme Court case yesterday was that anyone could hear it. What a concept. For only the 10th time, the Supreme Court allowed C-SPAN to record the give-and-take between the lawyers and the judges. Then, minutes after the court session ended, C-SPAN played the audio recording on television and made it available on the Internet...." More (Concord Monitor 12.01.2005). Earlier. Let cameras in the big courthouse?
What happens when a court reporter quits and transcripts are delayed? Awhile ago the Colorado Court of Appeals "sent [10 criminal appeals] back to a lower court because trial or hearing transcripts were missing or incomplete." Now former Colorado Supreme Court Chief Justice Anthony Vollack has rejected claims by the defendants that they have a right to a speedy appeal that was violated and that as a result their convictions may not stand. The mess appears to have been caused by the court reporter's quitting and refusing to help finish the transcripts. Transcription is taking time because "[o]ther court reporters have had trouble deciphering [the reporter's] unusual form of shorthand." The reporter, who is now working as a clerk in federal court, is appealing a judgment holding her in contempt for refusing to help finish the transcripts. More (Washington Post 11.30.2005). Comment. This situation must be distinguished from the situation where the transcripts have been lost or destroyed along with the shorthand record, making a transcript-based appeal impossible.
Cracking down on 'shady judging.' "Two Thai aquatics officials have been sanctioned by the International Aquatics Federation (FINA) for 'shady judging' in the 23rd Southeast Asian Games (SEAG) hosted by the Philippines from Nov. 27 to Dec. 5, a Filipino sport official said Thursday...." More (Xinhua 12.01.2005). Comment. We don't like "shady judging" even though we're not sure precisely what it is.
Judge says she was mistaken for court reporter! "When newly elected Circuit Judge Nanci Grant showed up for her first day on the Oakland County bench nine years ago, her secretary, who had never met her, mistook her for the court reporter...." More (Detroit Free Press 11.30.2005). Comment. And a few years ago in Uptown, the trendy area of Mpls. near one of my favorite haunts, Lake Calhoun, some younger women (younger than I) mistook me for Ted Kennedy. So what? My advice to Judge Grant: Get over it. Some of the women who were true female pioneers in the legal profession and in the judiciary could tell us, and have told us, some real stories about real discrimination. Judge Grant seems to have had a relatively easy time of it: she is the daughter of a judge and she became a judge at age 32.
Judge disciplined for involvement in son's case. "The [N. Mex.] Supreme Court has been asked to reprimand [and place on six months' supervised probation] a [district] judge [Larry Ramirez] accused of improper involvement in a public drinking case against his son and belittling an attorney in court...[Ramirez] already has completed an ethics course and has paid $1,500 to the commission for costs stemming from its investigation...." More (Free New Mexican 11.30.2005). Comment. We've seen quite a few cases in which judges have gotten in trouble with the discipline folks as a result of the way they've responded when their kids are arrested/prosecuted. There's no reason a judge need stop being a father or mother in this situation but there's a right way and a lot of wrong ways. It's wrong, e.g., to show up at the police station and identify oneself as judge and flash one's judicial identification card, as Judge Ramirez did. Some of the other things he did also may have crossed the line, but we believe him (as apparently do the ethics folks) when he says he didn't seek preferential treatment. Courts obviously need to do a better job of educating judges, in advance, of what they can and cannot properly do when their kids or spouse or siblings or parents or in-laws get in trouble.
When fathers or mothers embarrass their kid the judge. U.S. District Court Judge Amy St. Eve of Chicago has been assigned to hear the U.S. Department of Justice's case against Conrad Black, the press baron, for his alleged role in an alleged multi-million dollar fraud. And now comes Judge St. Eve's proud dad to say a few good words about her: "'He'd better watch himself,' retired dentist Raymond St. Eve told The Globe and Mail in a story published yesterday. 'Amy will cut him down. She's not going to be fearful of this man.' The 79-year-old said of his daughter that, 'You'd never guess that out of this little squirt comes a fistful of dynamite.'" More (Toronto Star 11.30.2005). Comment. Monroe Freedman, a professor at Hofstra Law School, is quoted as saying she "definitely" should recuse. Others, including Wayne State's Peter Henning, aren't so sure. Henning says the father has put her in a bad position but adds: "[E]ven so, Black's lawyers would need more than evidence of a father boasting about his daughter [to get her removed]. Remember, you're not responsible for your relatives' comments and people have stupid relatives. Jimmy Carter was president of the United States and had a brother...who had a beer named after him..." We personally wouldn't advocate a precedent that mere relatives of a judge have the power to force a recusal simply by blabbing to the press in an embarrassing way.
The nature & types of judging -- herein of 'meat judging.' No, we're not referring to beauty-contest judging. We're referring to 4-H meat judging -- and Ashley Come, Lucas Gaston, Jodi Miller and Loni Woolley are our heroes of the day. These Texas 4-Her's comprise the "Johnson County 4-H meat judging team [which] won the national championship at the recent American Royal National 4-H Meats Judging Contest." According to a terrific story today (11.30.2005) in Texas A&M Ag News, which we urge you to read, meat judging requires a great deal of training and expertise:
Meat judgers have to be able to identify different kinds of meats -- beef, pork, lamb and variety meats such as liver, tongue and tripe -- in different cuts. These include various cuts of steaks, loins, shoulders, ribs and chops. "When actually judging the meat, there are many factors to (rank) it on," [Loni] Woolley said. "Almost every different carcass or cut is placed on different factors or different importance of factors. The main factors include quality, muscling and trimness. Each one of the factors is different for beef, pork, primal and retail. This is very hard to learn at first." Judgers also have to give oral reports on reasons for placing particular cuts of meat in certain categories, [Ashley] Come said.
How does one get from Nowhere to Somewhere in the competitive world of meat judging? One practices: "We practiced all year long," [Come] said. "We practiced in the (meat) cooler, on paper and on the computer all the time. One day (close) to the national contest we were in the cooler for about 11 hours." But in the end it can pay off, as V. P. Cheney might put it, "big time": Loni Wooley, .e.g., has been offered "an $8,000 scholarship to go meat judge at [Texas] Tech [University]." According to Ashley Come, meat judging can open career doors: "You can do anything from being a butcher to being a meat inspector and working for the USDA (U.S. Department of Agriculture), or even working in meat research and development. A meat science degree could get you into these jobs or maybe even some kind of microbiology degree." Comment. Personally, we think the experiences gained and skills learned by the participants in the meat-judging competition will transfer well to common law judging. Indeed, already Ashley, Lucas, Jodi and Loni have more judging experience than some people named to some of our higher appellate courts around the country.
Herein of public urination and the law. We start with a hypothetical episode from a fictional past:
It is Fall, 1997. Our hero is a careful, prudent man. Mostly, he has played by the book in his life. Until a few years ago, things have gone well. But now his personal life is not going well. He finds it difficult to cope at times. At night he walks in the cool darkness the six blocks to his exclusive suburb's aggregation of cute gift shops, fashion boutiques, trendy restaurants, hair salons, four-screen movie theater, drug store, jewelry store, and (gourmet) grocery store, and stops occasionally to look in the windows. As he turns and begins to retrace his walk home, he looks to his right into a secluded walkway between two brick store buildings and sees a young man, short in stature, perhaps 5' 4" tall, an obvious "outsider," relieving himself against the wall. "Hey, we don't do that around here," he hears himself yell at the young man in a proprietary, authoritative voice. The young man replies in smart aleck fashion, "You're lucky I didn't piss on you," and walks out toward him and then starts to turn away to walk ahead of him on the sidewalk. Our careful, prudent man does what his rational mind knows he shouldn't do. He is 6' 2" tall and is wearing a raincoat that makes him look bulkier than he is. Standing as tall as he can, puffing himself up in aggressive, mammalian predatory fashion, and walking boldly toward the young man, he puts his right hand in the right pocket of his raincoat, possibly as if reaching for something, and says, "Watch it, boy!" The young man is stunned enough to wet his pants but he doesn't because his bladder is freshly empty. He turns quickly and races across the street, doubling back so as to avoid our brave guardian of the community's morals and the public health.
How should "the law, in its majesty" deal with such an outrageous violation of the community's morals and the public health? A judge in Fond du Lac (French for "Fond of Leaks"?), Wisconsin, Judge Jerry Jaye of Lakeside Municipal Court, feels he has the answer. Under a "creative" sentencing policy he originated over a year ago, "Judge Jerry" fines the violators for disorderly conduct and requires the violators to write letters of apology to a business group and to the community, with the latter letters being published in the town paper. More (Washington Post 11.29.2005). The letters appear in the Fond du Lac Reporter, which has performed a great public service by collecting them in one spot, accessible to anyone in the world by clicking here. Comments. a) Earlier this year we commented on a judge who sentences people convicted of low-level offenses to "fates like sharing a sty with a pig and parading a donkey through town." We wrote:
I wonder if the judge has tried "the stocks" or "the dunk tank." I don't like the idea of humiliating people in this way but I think a case can be made that it's better in many cases than sending them to jail. Is it "either/or"? Why not "neither"? We jail too many people for piddly things (at great expense) & imprison too many people for far too long (at enormous expense) for "non-piddly" offenses. See, BurtLaw on Crime & Punishment. (I know I'm in the minority on this.)
b) What I said about "piddly" things applies here literally. We think the poor fellow in our hypo set in suburbia in the fall of 1997 was lucky that our hero acted irrationally by puffing up and thereby scaring his pants off rather than rationally by hailing a nearby constable and filing a complaint.
Annals of judicial elections. In May we noted that Judge Dana Fortinberry, a trial judge in Michigan, faced a number of misconduct charges in a formal complaint filed in the state supreme court by the state's judicial tenure commission. The main allegation was that, without first-hand personal knowledge, Judge Fortinberry sent a letter to a county law enforcement group implying that then-judicial-candidate Kelley Kostin, now a colleague on the bench, helped her husband cover up the circumstances of his former wife's death in 1989, which Fortinberry hinted may have been a murder, not a suicide. More (Detroit Free Press 05.13.2005). Now comes word that Judge Fortinberry "[has] admitted to one count [of misconduct in sending the letter] and will likely face public censure by the Michigan Supreme Court when it reviews the case, likely early next year." More (Detroit Free Press 11.29.2005).
Judge suspended, fined for sexual harassment. "[The Mass.] Commission on Judicial Conduct suspended a Plymouth County judge [Robert Murray] yesterday for a year without pay for sexually harassing two female court workers. The commission also fined him $50,000 and barred him from ever sitting in any court in [Plymouth] county...Murray, who has been on paid leave for almost a year, agreed to the punishment and apologized to the court officer and court clerk, with whom he recently settled harassment claims for a total of $250,000...." More (Boston Globe 11.29.2005). Update. One of the two women who complained about the judge reportedly says in her opinion the punishment meted out is insufficient. More (Boston Herald 11.30.2005).
Another complaint filed against judge. "A twice-censured Superior Court judge faces another complaint about her behavior before the board that handles judicial ethics complaints. Wake County Superior Court Judge Evelyn W. Hill is accused of displaying her 'disdain' for two defense lawyers in front of juries...Hill, a former prosecutor, has been the subject of three complaints filed with the N.C. Judicial Standards Commission since she became a judge in 2001. They describe her berating and belittling lawyers, shoving a law firm's employee in an elevator, mocking a witness and making racially questionable remarks. She has denied some allegations and apologized for others...." More (Lexington Dispatch 11.29.2005). Earlier. Did judge berate, belittle, shove & mock?
Judge gets informal reprimand for being impatient, discourteous. "A former law clerk and her attorney say a state commission's decision to privately reprimand a veteran [AZ] Court of Appeals judge [Susan Ehrlich for being impatient and discourteous]...amounts to a cover-up...[F]ormer law clerk Regina] Pangerl had accused Ehrlich of making disparaging remarks about Mormons, of harassing Pangerl because she is Mormon and of mistreating other judges...." The judge's attorney called the clerk's allegations a "smear" and noted that the commission didn't find any religious bias or harassment. More (KVOA.Com 11.29.2005).
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