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.
Ex-judge gets sentenced to prison. "Defiant to the end of prosecutors' claim that $10,000 in cash payments that he received from Bail Bonds Unlimited were bribes, former state Judge Alan Green was sentenced to 51 months in prison Thursday in federal court in New Orleans, becoming the second judge to wind up behind bars in the Jefferson Parish courthouse corruption scandal...." More (New Orleans Times-Picayune 02.10.2006).
France's answer to Judge Judy. "Initially, in [Judge Michèle] Bernard-Requin we think we have a regular Judge Judy: wry and emphatically intolerant of nonsense. But she's a better listener, and, occasionally, there's humanity in her retorts. Moreover, Bernard-Requin doesn't flagellate people with the law, regardless of how severe she might come off. The judge wears a pageboy and a sternly seasoned expression that in moments of exasperation turns into a tight smile, warm and sometimes haughty. It's like she's hearing a bad joke at a cocktail party and all she can do is laugh. Presumably to keep from crying." From a review by Wesley Morris of 10th District Court, "Raymond Depardon's engrossing French documentary." More (Boston Globe 02.10.2006). Comment. The movie is playing at Kendall Sq. Cinema in Boston. It's the sort of movie that would have been playing at the old Brattle Theater in Harvard Sq. when I was in law school in the mid-1960's. The Brattle is subject of a Preserve the Brattle Campaign these days. See, At Brattle, the light still flickers (Boston Globe 12.30.2005). I have a warm spot in my heart for The Brattle. It's a repertory movie theater that specialized in foreign films, indies, classics, with a new film on the bill every couple days. See, John Engstrom, 100 Years of the Brattle. I got my education in "film" there. I found that if I ate my dinner early in Harkness Commons, then trotted to the Square, I could fit in a movie -- a/k/a "escape" -- in between an afternoon of studying and an evening of studying, a day that I'd top off by drinking beer and eating burgers and watching Johnny Carson at 11:30 p.m. at Harkness with friends. Related reading. BurtLaw's Harvard Law School.
Judge: I do not sleep in court, I close my eyes. "In response to accusations of sleeping on the bench, Rockingham County Superior Court Judge Patricia Coffey said she simply closed her eyes. 'I am now keenly aware that any gesture or mannerism may be misinterpreted,' she wrote in a Feb. 6 letter to the N.H. Judicial Conduct Committee. 'You can be sure that I will not be closing my eyes except to blink.'...Coffey wrote that reasons for a judge, or anyone in a courtroom, to close their eyes may include concentrating more intently, blocking courtroom distractions, staving off a headache, or 'masking any potential reaction to shocking or unpleasant evidence.'..." More (Portsmouth Herald 02.10.2006). Comment. See, our earlier entries and comments, with embedded links: More people claim judge was guilty of NAP (napping while presiding) and Judge denies dozing during trial.
Annals of judicial secrecy. "The criminal justice system in Peel Region may not be able to function if "scandalous" evidence involving one of its judges is made public at a hearing this spring, a panel of the Ontario Judicial Council has heard. But a lawyer representing Justice Marvin Morten says the region's residents, particularly its 500,000 members of visible minorities, deserve to know why a black judge is in danger of losing his job. If Morten's hearing unfolds behind closed doors 'there will be an uproar in the black community,' added Munyonzwe Hamalengwa, a lawyer representing Pride News Magazine, which specializes in news for African Canadians...." More (Toronto Star 02.10.2006). Comment. Judge Morten apparently stands accused of angry outbursts and bullying of other judges. The lawyer prosecuting the case wants "to impose a publication ban on their testimony or close the hearing to the public when the judges and court staff take the witness stand, starting in May." These judges will be testifying to "the most unflattering and extreme criticisms." Will their testimony, relating criticisms and accusations Judge Morten allegedly made of them, tend to destroy public confidence in the judiciary? "Peter Jacobsen, a lawyer for the Globe and Mail, argued the justice system can withstand the scrutiny. 'The court system is not some delicate porcelain doll that will shatter,' he said. Toronto Star lawyer Paul Schabas said there is not one shred of evidence to support Hunt's argument that publication could impair the administration of justice. In fact, closing the hearing to the public would bring the administration of justice into disrepute, Schabas said...." The board will decide the motion as early as today. In our view, it'a a no-brainer: the hearings ought to be open to the public and the press ought to be free to report the testimony. As Justice Brandeis said, sunlight is "the best disinfectant."
What about that quote we just attributed to Brandeis? He did use the metaphor on a number of occasions. See, e.g., the following:
"Publicity is justly commended as a remedy of social and inductrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." L. Brandeis, Other People's Money 62 (1933 ed.)
See, also, L. Brandeis, "What Publicity Can Do" Harper's Weekly (12.20.1913). In saying that sunlight "is said to be" the best of disinfectants, he perhaps was saying he couldn't be sure who coined the expression. Here's an earlier use of it, from a 1903 advertisement in the Washington Post for a book titled Common Sense Medical Adviser:
"The best disinfectant of all is sunlight. It destroys by its very brightness all sorts of germs and at same time helps the growth of plants and animal life." (Washington Post 4, 05.26.1903).
The above quotes are from The American Dialect Society's Listserv archives. It's possible Brandeis first saw the phrase in the ad in the Post. But it's also possible he heard it, or something like it, from his friend, Justice O. W. Holmes, Jr., who may have been repeating what his father, the world-renowned doctor, professor, novelist-poet, and sun-lover, Dr. O. W. Holmes, Sr., might have said. Here's a piece on sunlight by Holmes, Sr., that's in my personal daybook:
The dark side of a street is far more subject to disease than the light side. Sir James Wylie found three times as many cases of disease on the shaded side of the barracks at St. Petersburg as on the other side. Dupuytren is said to have wrought a cure in the case of a lady in a seemingly desperate condition, by simply removing her from her dark quarters to a brighter residence, and keeping her as much as possible in the daylight. There is no better testimony on any such point than that of Miss Florence Nightingale. What she says of the value of light to those who are ill indicates no less its necessity for those who are well:--
"Second only to fresh air, however, I should be inclined to rank light in importance for the sick. Direct sunlight, not only daylight, is necessary for speedy recovery....Instances could be given almost endless, where in dark wards, or in wards with a northern aspect, even when thoroughly warmed, or in wards with borrowed light, even when thoroughly ventilated, the sick could not by any means be made speedily to recover."
Very few persons seem to have a due sense of the luxury and benefit of aprication, or immersion in the sunshine bath, which every fair day will furnish gratuitously to all applicants....The passion of the sunflower for "her god" is famous in song. But there are examples of still more ardent devotion than hers. Mr. Jesse tells how a potato, left in a dark cellar with only one opening, sent its shoot twenty feet to get at the light through that little crevice....There is a little streak of morning sun which in early spring comes in between two buildings near by me and traverses the open space beyond, as the sun moves up the heavens. The sensible barn-yard fowls of the Infirmary hen-coops follow it as it slowly travels along, as faithfully as if their brains were furnished with heliostats.
It is well to remember that there is something more than warmth in sunlight. The skin does not tan and freckle in warm, dark rooms. Photography reminds us that there is a chemistry in sunshine, without which that beautiful art would be unknown....
The tailor's art has blanched the surface of our bodies to the whiteness of celery. Like that, we are buried alive, all but our heads. We can hardly doubt that the condition of the primitive man was to bask in unimpeded sunshine, and that in depriving himself of it to so great an extent he must pay the price in the form of some physical deterioration. Men and women must have sunshine ripen them as much as apples and peaches....
Excerpted from Dr. O. W. Holmes, Sr., "The Human Body and Its Management" (Pages from an Old Volume of Life: A Collection of Essays (1883). Note: a later reprint bearing the same title does not include some of the essays that are in the volume I have, in particular, this one.
There is a debate ranging these days between dermatologists, who urge everyone to always wear sunscreen to avoid skin cancer, and doctors who say people in northern climes don't get enough sunlight and the vitamin D that comes with it and that reasonable sun exposure for many people may reduce the risk of breast, colon and prostate cancer. Click this Google search for recent items in the popular press on the controversy. For a middle-of-the-road position, consider this from BUPA Health News. My trusted "personal adviser," who has read all the studies, has persuaded me that I should get lots of sunlight and get plenty of vitamin D. It's hard to get the sunlight here in MN in the winter, but I find that a couple daily walks help and I take D supplements as well. My guess is there are a lot of black-robed people who instead of getting too much sunlight aren't getting enough. I invite the ones up in Canada in particular not to be too afraid of it.
Annals of judicial retirement planning. "Common pleas Judge Edward Zaleski, one of four Lorain County judges who have confirmed plans to retire, collect a pension and run for re-election, said yesterday he doesn't expect any backlash from taxpayers at election time. Zaleski, fellow Common Pleas Court Judge Thomas Janas and domestic relations Judges David Basinski and Paulette Lilly all admitted this week they filed notices of retirement with the Board of Elections but also plan on running again...Zaleski said his decision to run for office under retirement does not deny another judge the opportunity to run for office. 'Anyone can run for judge,' he said. If he had decided to retire as judge and practice law in the private sector, Zaleski said he could conceivably be taking business away from other attorneys...." More (Morning Journal - Ohio 02.09.2006). Comment. Will "the voting public" accept the explanation, however valid it may be? We'll see.
Perfume-free courthouses? "An ex-country music disc jockey who sued after claiming she was sickened by a fellow radio host's use of French perfume is entitled to $1.2 million plus attorneys' fees -- still far less than a jury initially awarded. U.S. District Judge George Caram Steeh, in a 10-page opinion Tuesday, raised former Detroit radio host Erin Weber's award from an earlier reduction to $814,000 in December. Initially, a jury had awarded her $10.6 million...." More (Detroit News 02.09.2006). Comment. I can't stand cigarette smoke and I'm allergic to perfume, so I'm personally biased on issues relating to smoking and the wearing of strong perfumes in the workplace. I could write an interesting anecdotal history of the slow movement toward a smoke-free work environment in courthouses during my nearly thirty years in the MN state judicial system. I'm delighted that public buildings are now smoke-free in MN and I trust that no one connected with the judicial system tries to get around the ban. Perfume can still be a problem for workers like me who are allergic to it. We know of a fellow with a perfume allergy who maintained a secret consensual relationship with a female co-worker. Because of his perfume allergy, she stopped wearing perfume. A beneficial side effect of her act was that they didn't risk the "transfer" of her perfume to his clothes during their frequent on-the-job hugs, etc., which might have tipped off perceptive co-workers. He knew "it" was "over" when she resumed wearing perfume. :-( Oddly, he still thinks about the smell of her perfume, which he liked -- even though (perhaps because of) being in its presence made him dizzy.
The judicial cry heard 'round the world: show us the money! "The Chief Justice, Benjamin Odoki, has accused the government of sitting on his demands to increase judge’s salaries and improve their welfare...'I intend to continue pursuing appropriate organs to improve the terms and conditions of service of the judiciary employees. You can’t milk a cow without feeding it....,' Odoki said [at a judicial conference]...Principal Judge James Ogoola said judges were stuck on the same pay for over seven years...." More (New Vision - Uganda 02.09.2006). Comment. For some of my views on judicial pay, see my 01.01.2006 entry titled The Chief Justice's Annual Report and my earlier mini-essay from 01.01.2002 titled I could be making lots more if I were Michael Jordan.
KS legislature considers alternatives to so-called 'merit selection' of judges. "Last summer, the Kansas Supreme Court upset a lot of legislators when it ordered them to spend a specific amount of additional money on public education. There was talk about payback and reining in what many saw as a runaway judiciary...On Wednesday, the House Judiciary Committee considered the most drastic judicial change offered this session -- a proposed constitutional amendment dumping the merit selection plan for picking Supreme Court justices...Kansas would be the first state in which voters scrapped a merit selection plan for the state's highest court. A companion bill would do the same thing for the Court of Appeals. Merit selection started in Missouri in 1940 and varies somewhat in each of the 23 states using it. In Kansas, a nominating commission considers applicants, then presents the governor with three finalists from which to pick one. Justices face a retention vote every six years by the citizens...." The proposal in question apparently would eliminate the so-called merit screening panel and would allow the governor to appoint the justices with senate confirmation and retention votes. Another proposed amendment "floating around" the legislature "calls for justices to be elected in statewide nonpartisan elections, which is done in 13 states." A third would simply add senate confirmation to the current method. More (Wichita Eagle 02.09.2006). Comment. MN's election system has worked well and I believe our judiciary is one of the best. Once in office, of course, the judges, who usually reach office by political appointment as "term fillers," tend to resent the occasional challenger. That's one reason some of them, including MN's former chief, who quit last month at age 51, advocate ye olde "MO Plan." Cf., Blatz again blazts judicial elections (and my comments and embedded links). We think each state is different. What works so well in MN might not work in another state. We have no idea whether "the MN Plan" would work as well in KS as it has here, but we commend it to the KS legislators for careful consideration.
Sam Alito remembers Max Rosenn. "A bout with pneumonia, failing health and trips in and out of the intensive care unit over the past month did nothing to deter Judge Max Rosenn's drive. His law clerks visited the hospital almost every day, dropping off drafts of legal opinions and paperwork for the judge's approval. Rosenn wouldn't be confined, getting out of bed so he could sit in a chair for work. 'I can tell you he worked right up to the very end,' said Chief Judge Anthony Scirica of the U.S. Third Circuit Court of Appeals...'His dedication to his work and to the Third Circuit were phenomenal,' said U.S. Supreme Court Justice Samuel Alito, who had served on the Third Circuit until his recent nomination to the nation's highest court...He had a tremendous influence on all of us...He was a wonderful judge and a wonderful person.'" More (Citizens Voice 02.09.2006). Earlier. 'Giant,' who left 'indelible mark' on valley, 'answers summons.' Comment. The judge was still working -- at age 96. The example of Judge Rosenn is but one of many reasons we oppose mandatory retirement of judges. See, BurtLaw on Mandatory Retirement of Judges, an essay that, although we wrote in 2000, is still one of the most-visited pieces on our companion blawg, BurtLaw's Law and Everything Else.
Rest assured, you need not worry about prisoners working at courthouse. "When trustees from the Branch County Jail are working at the courthouse, the public and employees can be assured they are not armed robbers or dangerous criminals of any sort, and that they have been screened...." More (Cold Water Daily Reporter - MI 02.09.2006). Comment. We generally support programs like this, I guess, but are always instinctively on alert after officials or bureaucrats reassure us about this or that not being a problem.
Annals of legislative-judicial comity, civility and mutual respect. "State Senator Ernie Chambers blasted a Lancaster County judge on Wednesday for vacating an order calling for a grand jury investigation of University of Nebraska Regent David Hergert. Chambers of Omaha lashed out at District Judge Steven Burns, who late Tuesday issued a statement saying: 'The order to convene a grand jury has been vacated.' 'The man is a dunce,' Chambers said on the floor of the Legislature...." More (WOWT - NE 02.09.2006).
Valentine Bulletin! - love judge lets old bird marry young chick. "Former Metro Councilman Vic Varallo won the right to marry the woman he loves yesterday, in a decision that is being hailed by some as a victory for the elderly. Davidson County Circuit Judge Randy Kennedy restored the 83-year-old man's right to his own decision on marriage, after it was taken away by another judge in 2003.The decision frees Varallo to wed Sheila White, 48 -- a relationship that his family members opposed...." Earlier. For details on the case, see our earlier posting, Annals of law and love. Comment. The paper contains a pic of the couple. They make a nice-looking couple. There's a great Pedigree dog food commercial that shows a number of cute dogs & has the punch line, We're for dogs (there also are ones that say, "We're for pups" and "We're for shelter dogs"). We here at the international headquarters of BurtLaw's The Daily Judge are for dogs, and we're also for love. We wish Vic and Sheila the best. BTW, we suggest to the folks at Hallmark that they hire someone to write a tear-jerking, schmaltzy teleplay for a Hallmark Hall of Fame TV movie based on the saga of Vic and Sheila for airing a year from now. We'd watch.
'Giant,' who left 'indelible mark' on valley, 'answers summons.' "With heavy hearts, we say goodbye to Judge Max Rosenn -- a giant in our community.
Several days after turning 96, Rosenn died early Tuesday morning. We will remember Rosenn as a leader -- a wise, forward-thinking and modest man...On May 14, 1996, the day that the federal building in Wilkes-Barre was dedicated in his honor, Rosenn spoke longingly of his parents, his late wife, Tillie, and his secretary, Barbara T. Sabol, who died that same year after working for him for 23 years. '(They) have answered that last great summons' to a higher court, he said...." Judge Max Rosenn left indelible mark on Valley (Wilkes-Barre Times-Leader - Editorial 02.08.2006); obituary (Wilkes-Barre Times-Leader 02.07.2006).
Judge with holistic approach tops tough-talker to become next mayor. "Voters overwhelmingly elected a longtime Superior Court judge as the city's next mayor. Pat Morris, whose holistic approach to cleaning up the city was derided as too soft by critics, trounced tough-talking City Attorney James F. Penman by a nearly 2-to-1 margin in Tuesday's runoff election...." More (San Francisco Chronicle 02.08.2006). Comment. Maybe MN's tough-talking governor, Tim Pawlenty -- see, my recent posting (at my political opinion journal) titled When will Pawlenty stop being 'tough on crime'? -- should take note.
Judge, three others, found guilty of fraud. "A Provincial Court judge and three community leaders were found guilty of fraud and breach of trust yesterday after a lengthy and complex trial in northern New Brunswick. Judge Drew Stymiest, John Tucker, Ian Jamieson and Darrell Doucette are all former directors of the hospital corporation in Miramichi. They were accused of defrauding the Region 7 Hospital Corp. of thousands of dollars between 1994 and 2000...." More (Globe and Mail 02.08.2006). Earlier. Not just any judge (posting dated 12.19.2006) ("[Miramichi, New Brunswick Judge] Drew Stymiest is not just any judge, but a man whose influence reaches deep into the place he calls 'The River.'") Update. Judge resigns (CBC 02.09.2006).
Did high court judge act improperly in participating in case? "Public interest watchdog groups filed a complaint Tuesday with the state board that monitors judicial conduct, alleging that Illinois Supreme Court Justice Lloyd Karmeier improperly voted on cases involving big corporations that donated extensively to his campaign. The groups asked the Judicial Inquiry Board to investigate why Karmeier, a Republican, did not recuse himself from large class-action lawsuits against Philip Morris USA and State Farm Mutual Automobile Insurance Co...." More (Chicago Tribune 02.08.2006). Comment. One doesn't have to accept contributions. When I challenged the sitting chief justice in the general election in MN in 2000, I made it clear up front that I wouldn't accept contributions from lawyers or, for that matter, from anyone. The treasurer for my opponent, C.J. Blatz (now retired at age 51), who by the way is a good person, built a war chest of $120,00-130,000. I've never checked, as I could, to see who donated or how much of that the campaign spent. I kept my expenditures under $100. I lost. :-) If I'd won, I wouldn't have had to worry about sitting or not sitting in cases involving donors. Here in MN judicial candidates have relied on treasurers to collect the money and not tell the candidates who the donors are. I don't know if all treasurers have kept their mouths shut (I once heard a rumor, long after the fact, about a long-ago campaign, but it was just that, a rumor). But incumbent judges in MN who attend campaign get-togethers at big law firms surely must have a sense that after they leave the get-togethers, those attending make contributions. And incumbent judges here also know who the people are, mostly lawyers and politicians and bar association types, who endorse them. I "cleverly" said I didn't want and wouldn't accept endorsements, knowing, of course, that even those who might vote for me wouldn't want to publicly identify with a challenger. I "cleverly" didn't win.
Wrongly sending the poor to jail for not paying fines they can't afford. "Hamilton County violated the constitutional rights of poor people for more than 20 years by sending them to jail for failing to pay minor fines, a federal judge ruled Tuesday. Most of the poor defendants were charged with minor infractions, such as traffic violations, and at least 600 of them spent one or more nights in jail...." The judge blamed public defenders for not seeking ability-to-pay hearings. More (Cincinnati Enquirer 02.08.2006).
Study relates political background of federal judges to sentencing behavior. "Federal judges appointed by Republicans give tougher sentences on street crime, two Northwestern University legal scholars [Emerson Tiller and Max Schanzenbach] say, while Democratic appointees take a stricter view of white-collar offenses. In a study of 365,000 sentences meted out between 1992 and 2001, the Republican appointees appeared to give about 10 percent more prison time for violent crimes, drug offenses and theft. Democrat-appointed judges appeared to view white-collar crimes as more serious...." More (Chicago Tribune 02.07.2006). Comment. I haven't read the study, which is being released today. I have a sense that recent Republican Presidents, who've all learned from Richard Nixon that being perceived as "tough on crime" wins votes, appoint more former prosecutors as federal judges than Democrat Presidents do. That might account for the study results as well as prior political affiliation. BTW, not all Republicans believe in the morality of political posturing on crime or of our current practices in re punishment of crime. See, e.g., campaign position paper on crime and punishment that I wrote and posted on my campaign weblog in my unsuccessful race on an anti-war platform in the 2004 Republican primary in MN's Third Congressional District against entrenched incumbent, Jim Ramstad. See, also, my posting titled When will Pawlenty stop being 'tough on crime'? where I suggest that "If a conservative is a liberal who's been robbed, and a liberal is a conservative who's been ticketed after being caught running a red light by a red-light camera, then someone who advocates sentencing reform is any liberal or conservative who has gotten caught with his hand in the cookie jar and has had to serve time in jail or prison."
Common Cause alleges legislators traded funding for favorable S.Ct. rulings. "A government watchdog group has accused state legislative leaders of trading funding for favorable Supreme Court rulings on issues important to legislators. Common Cause/Pennsylvania dropped that bombshell yesterday in an expanded version of a federal lawsuit that it filed in October to block the pay raises the Legislature approved in July for itself, state judges and the governor's office. The raises were rescinded in November after a public outcry. A spokesman for Chief Justice Ralph Cappy called the charges 'preposterous' and 'reckless.'" More (Pittsburgh Post-Gazette 02.07.2006). Comment. For many of my earlier entries relating to the problems of the PA Supreme Court in re the pay increases, see, Justice loses retention election and embedded links.
Throwing chappals at judges - a trend? " Infuriated over a verdict convicting him in a dacoity case with a life term, an accused hurled a chappal at a sessions judge here in the courtroom. However, the judge dodged and the chappal missed the target at the fast-track court yesterday...Last year, a similar incident had occurred in a sessions court when an accused had thrown his chappal at the judge after being convicted...." More (NewKerala.Com - India 02.07.2006). Comment. "A chappal is an item of Indian footwear, which resemble flip flops but have the added feature of a toe strap. In India it is considered the height of belligerence to brandish a chappal in one's hand, as a threat of physical violence against any would-be antagonizer, no matter how trivial the perceived aggravation may be. Thus, the chappal can also be considered as the weapon of choice for the common man...." More (Wikipedia 02.07.2006).
International Court of Justice gets first female president. "The United Nations main judicial body today turned to a British international legal expert who became its first and only female member more than a decade ago to serve as its first woman president. Rosalyn Higgins was elected president of the International Court of Justice (ICJ) by her peers at The Hague while Judge Awn Shawkat Al-Khasawneh of Jordan was elected Vice-President. Each term is for three years...." More (UN News Centre 02.07.2006).
Coroners' courts get first makeover since 1275. "In the first substantive reform of the coroners' system since 1275, bereaved relatives will be given new rights to challenge inquest verdicts...Part-time coroners will be abolished and all coroners will have to be legally qualified. At present, a medical qualification is sufficient. Coroners will be funded in the same way as other judges, rather than by local authorities. And there will be a Chief Coroner to give leadership in the same way as the Lord Chief Justice does for judges...." More (UK Telegraph 02.07.2006). Comments. a) "Coroners are judicial officers that are responsible for investigating violent, unnatural or sudden deaths where the cause of death is unknown. The Coroner's Court holds an inquest to determine how, when and where the individual died, and in some cases a coroner will head this court on their own. Coroners are generally lawyers, and in some cases doctors, and they and their deputies hold investigations or inquests into the causes of death to determine whether further criminal investigation is necessary. In Scotland, the Procurator Fiscal and the Sheriff Courts investigate supicious deaths under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976...." From The Coroners' Court (BBC). b) A conversation we overheard circa 1970:
Kid: "But mommy, I don't want to be a coroners' court judge."
Mom: "Shut up and keep studying A Child's Introduction to Forensic Pathology -- someday you'll be a star on a TV show about coroners' court judges and crime scene investigation."
Annals of judicial romance - or Judge Cass Timberlane of Grand Republic, Minnesota falls in love with a trial witness with fine ankles:
I would fall for a girl merely because she has fine ankles and a clear voice, I who have maintained that the most wretched error in all romances is this invariable belief that because a girl has a good nose and a smooth skin, therefore she will be agreeable to live with and -- well, make love to. The insanity that causes even superior men (meaning judges) to run passionately after magpies with sterile hearts. This, after the revelations of female deception I've seen in divorce proceedings. I am corrupted by sentimentality.
Trial Court Judge Timberlane thinking about an attractive female witness in Sinclair Lewis, Cass Timberlane 5 (1945). This, BTW, is one of my sentimental favorites of Sinclair Lewis' many novels. Many of Lewis' novels bear re-reading these days. Particularly relevant is his 1935 It Can't Happen Here. Lewis may not have written novels as well as F. Scott Fitzgerald, but he was a brilliant social observer -- a better sociologist than 99% of sociologists with Ph.D.'s. He always researched his books. He researched Cass Timberlane by shadowing a friend of his who was a real live district court judge in MN. If I had my copy of Mark Schorer's excellent bio of Lewis within arm's reach, I could give you the judge's name.
Judge insists on Seahawks cheer before sentencing for manslaughter. "A Pierce County Superior Court judge startled prosecutors, sheriff's deputies and spectators by leading a Super Bowl cheer for the Seattle Seahawks before a sentencing hearing in a manslaughter case. After all were told to rise as Judge Beverly G. Grant took the bench Friday, she asked everyone in court to say, 'Go Seahawks' before taking their seats. Dissatisfied with the low volume of the response, she repeated the request...." More (Seattle Post-Intelligencer 02.06.2006). Comment. It apparently didn't go over well with anyone. One doesn't need to be a genius to figure out why. Update. Judge apologizes (News and Observer - NC 02.07.2006) ("I take full responsibility...My sincere regrets to all").
Top judges insist on being called 'My Lord.' "The Supreme Court on Monday refused to entertain a petition seeking an end to the century-old practice of addressing judges of the Supreme Court and High Courts as 'My Lord' and 'Lordship,' which is [a custom held over from] the British times...." More (Malayala Manorama India 02.06.2006).
Annals of law and love. Vic Varallo, age 83, wants to marry Sheila White, 48. Vic is a former champion water-skier and football, track and baseball coach. He "was known for years as the consummate bachelor, a man who was often seen with different women around town," the "town" being Nashville. Nashvillians are familiar with the Varallo name because "the Varallo family" used to run some well-known restaurants and Vic was a two term city council member. Vic, who never married, met Sheila in 1998. He wants to marry her and she wants to marry him. The question is, will the court allow them to do so. Three years ago a probate judge appointed a conservator and barred them from marrying. Now Vic and Sheila are asking the new probate judge to let them get married. Vic apparently has no kids but "the family" says he has early Alzheimer's and shouldn't be allowed to get married. Vic's lawyer admits he has early Alzheimer's and can't manage his money but argues he's still capable of loving a woman who loves him and ought to be allowed to marry her. The new probate judge gets to decide. More (Fairview Observer 02.06.2006).
Are the 'most qualified' to be judges Republicans or Democrats? "The voters elect trial judges, but the governor appoints judges to the appellate courts. Imagine being the Republican governor, looking down from Albany at all those Democratic judges in New York City. What do you do? If you are Gov. George E. Pataki, you import judges. The governor's last seven appointments to the appellate court that covers Manhattan and the Bronx -- the Appellate Division's First Department -- have been from Utica, Dutchess, Putnam, Suffolk and Albany Counties, and from Queens and Brooklyn (part of the Second Department)...." Joyce Purnick, Metro Matters (N.Y. Times 02.06.2006). Comment. Given that the applicants for appointment to the appellate courts are screened by a "merit selection panel," one might naively presume -- if advocates of "merit selection" of judges are right -- that partisan "politics" wouldn't play a key role in selection. One would be wrong: "The 16-member court in the heart of diverse New York City has 11 white men, one Hispanic, one African-American, one Asian-American, one white woman and one vacancy, created when Justice Betty Weinberg Ellerin retired recently. The last seven Pataki selections are white men: six Republicans and one conservative Democrat...." A retired appellate judge is quoted as saying, "It's all politics, period." Purnick says that to critics of Pataki's selections "the appointive method of selecting judges, favored by most court reformers, is not always the answer to what ails our insistently partisan politics." Earlier. Federal judge halts rigging of judicial elections in N.Y.
Annals of specialized courts. "As part of steps to check corruption in various departments, the Kerala government is planning to set up two new special Vigilance Courts in the state, Finance Minister Vakkom Purushothaman told the Assembly today...." More (NewKerala.Com India 02.06.2006). Earlier. Electricity courts in Delhi.
Annals of court reporters, judicial secretaries. "Carol Evans started working for the Campbell County Circuit Court office [as a court reporter] on a temporary basis. That was 50 years ago this week. And while many 71-year-olds are retired, that's not even on the horizon for Evans...She's worked for five judges and has seen countless cases pass through the courts. In particular she recalled reporting the George Ratterman trial during Newport's syndicate days...Currently, Evans works as a secretary for Circuit Judge Julie Reinhardt Ward. Ward said typically new judges will bring with them secretaries of their own choosing but knew there must have been something special about Evans to have made it through all those years with a number of different judges. 'It didn't take me very long to realize that she's probably one of the smartest women that I know,' Ward said...." More (Cincinnati Enquirer 02.06.2006). Further reading. BurtLaw's Legal Secretaries.
Sandra Day O'Connor pumping her own gas. "Hey, that’s weird. That woman gassing up her Buick looks a lot like Sandra Day O’Connor. Holy shit, that is Sandra Day O’Connor!" Excerpt from a report to Wonkette by one of her "correspondents," on sighting of the now former Supreme Court Justice gassing up her Buick several weeks ago at the Mobil station on Connecticut Ave. near Chevy Chase Circle. More (Wonkette 02.06.2006). Comment. If judges can pump their own gas, they ought to be able to write their own opinions.
Judges as 'dullish people.' "Judges make thankless subjects for biographers. They sit too still in their chambers. When they do muse about their work, they're not especially good at it. As Judge Richard Posner has written, 'The general challenge of judicial biography...is to write empathetically and arrestingly about dullish people who are not introspective.'..." From Emily Bazelon's review of Joan Biskupic, Sandra Day O'Connor - How the First Woman on the Supreme Court Became Its Most Influential Justice (N.Y. Times Sunday Book Review 02.05.2006). Comment. Judges generally do lead "dullish" lives but that doesn't mean they're by nature "dullish people." Consider two tidbits from Bazelon's review: a) "In 1979 [O'Connor] got the chance to vacation with Chief Justice Warren Burger on Lake Powell and 'captivated' him, as Biskupic puts it. Burger, it was said, had previously opposed putting a woman on the court; now he talked up O'Connor." b) "Dressed in a lavender suit, she met President Ronald Reagan on a July morning in 1981 and 'sold herself,' according to Fred Fielding, then White House counsel, as an engaging, common-sensical fellow Westerner." Rhetorical question: Could a dull gal "captivate" Warren Burger and "sell herself" to Ronald Reagan? One of my great profs at HLS, W. Barton Leach, of Rule-against-perpetuities fame, used to say that 99% of all rhetorical questions could be answered and that a good advocate should always do so. The answer to my rhetorical question is: Yeah, dull people occasionally are able to rouse themselves sufficiently to do what needs to be done in order to, say, persuade a President to appoint them to the Court. I ask rhetorically, Does the name "Sam Alito" ring a bell? But wait! I'm not so sure Sandra Day O'Connor is by nature "dullish." Hey, she knows how to ride a horse and she pumps her own gas. Then again, she drives a Buick.... Double then-again, so does Tiger Woods. Hmm.
Did Alan Page get 'Freyed'? The "Books" subsection of the "Arts" section of the Sunday Star-Tribune here in Mpls. contains a curious "Bookmark" titled Setting the record straight. The reporter, Sarah T. Williams, says that several people have approached the family of MN Supreme Court Justice Alan C. Page about a reference in James Frey's controversial "fictionalized" memoir, A Million Pieces. Williams quotes the excerpt, in which Frey, who received treatment at MN's Hazelden Clinic, speaks of watching the end of a video "about a Famous Football Player who had a drinking problem and quit drinking using the Twelve Steps and now is a state Supreme Court Justice and is very happy...." Williams quotes an e-mail from Justice Page's wife, Diane Sims Page, saying that Page "was never and is not now an alcoholic." Williams reports further that Page's attorney, with the Robins, Kaplan, Miller & Ciresi, is, as lawyers say, exploring his options. Comments. a) Presumably one of the options is a defamation suit. Page would have to show, inter alia, i) that readers would think Frey's statement was an honest report of an event that occurred while he was in rehab and that the player in the video was Page, ii) that Frey never was shown any such video involving a "famous Football Player" turned judge and that he fabricated the incident, iii) that Frey's implication, if any, that it was Page in the video was believed by people and that Page's reputation was damaged as a result, and iv) that, since Page is an enormously popular and revered public figure, Frey was not merely careless but acted with reckless disregard of the truth and "actual malice" toward Page. b) The book excerpt in the Strib doesn't identify Page by name. Anyone who knows Page well -- as I do from working as Deputy Commissioner at the Supreme Court, where I became acquainted with his work as an assistant attorney general and where I thereafter became well acquainted with him as an associate justice when he was elected in 1992 -- knows that Page is not only a very fine man but has no drinking problem. Minnesotans might think the reference is possibly to Page, but might they, as I would have done if I had read the book, have assumed it wasn't possibly true? c) Perhaps Page is not alone in "exploring his options." There are other former NFL players who have become judges, including i) U.S. Supreme Court Justice "Whizzer" White (now deceased and therefore technically not defamable), ii) former Chicago Bears football player Robert Thomas, now Chief Justice of the Illinois Supreme Court, and iii) former Pittsburgh Steelers player Dwayne Woodruff. d) We have no inside information but we doubt Page will go so far as to both file a suit for defamation and actually take the case to trial. e) We hope Page doesn't file suit for defamation. But if he does file suit, we hope he loses. We say this without regard to whether he might have a "good case" for suing under current law and despite our admiration for him -- as readers of this blog know, we have said on a number of occasions that he's the best judge on the court. We say it for many reasons, including because of our oft-stated view that the cause of action for defamation ought to be abolished.
Aboriginal-only courts? "A landmark study of Customary Law recommends Aboriginal courts as one way of delivering more equitable treatment of indigenous people in the West Australian justice system. The 472-page discussion paper out today makes 93 recommendations and covers family violence, criminal justice, police and prisons and community governance...." More (The Advertiser 02.05.2006).
Legislator wants more judicial disclosure. "Saying Kansas courts are too secretive, Senate elections committee Chairman Tim Huelskamp, R-Fowler, recently introduced a bill calling on Supreme Court and appeals court judges to file the same financial disclosure forms that legislators file when they take office." But, it turns out, judges in KS already file those forms and also include debts, something legislators aren't required to do: "[A KS judicial rule] requires a listing of income, supplementary income, gifts, as well as financial liabilities of the judge, the judge's spouse and dependent children or stepchildren" and, according to an administrator, "Reports are readily available to the public in the Office of the Clerk of the Appellate Courts." More (Hutchinson News 02.05.2006).
'Free' weddings on courthouse steps on Feb. 14 - an annual tradition. "Couples looking to get hitched on Valentine's Day can do just that, for free, at the annual group wedding ceremonies performed on the steps of the Bexar County Courthouse...." More (San Antonio Express-News 02.05.2006). According to the paper, A judge will perform free weddings "at midnight on 02.14" and at 11 a.m. and 2 p.m., and ministers will perform free weddings at "12:01 a.m., noon, 3 p.m. and 6 p.m." Want to renew your vows? Be there at 8 p.m. Comments. As we said last week, we're always suspicious of offers of "free" things. See, our comments at Free lunch for judges - literally. It turns out you'll still have to pay $36 smackers for your license to practice biology -- and God knows how much you'll get stuck paying down the line. :-) But, if you've already decided on getting married, it's not a bad deal -- especially given the average cost of weddings these days. See, A $500,000 wedding (CNN 06.01.2005) ("There are 2.4 million weddings a year in the U.S., and the average cost is $22,000, about 40% more than five years ago. One out of every three brides hires a wedding planner.").
Annals of judicial romance. "Madison County Circuit Judge George Moran Jr. attended Spanish classes at Southern Illinois University Edwardsville during the court’s business hours, a professor at the university says. And a woman from Granite City who said she met Moran through an Internet dating site said the judge accepted free luxury box tickets to a Cardinals game at Busch Stadium from a prominent trial lawyer who has appeared before the judge in cases, some resulting in verdicts or settlements worth millions of dollars...." More (St. Louis Post-Dispatch 02.05.2006). Comment. Worth reading in its entirety. See, also, our earlier three-part entry, prompted by revelations about Judge Moran, titled Annals of judicial cyber-dating and 'judicial hellholes.'
Were judges offered lots of drinks to reduce prison term? According to a newspaper in Malta, a 61-year-old man has pleaded guilty to bribery, admitting he offered "Lm 10,000 worth of drinks each" to two appeals judges to reduce the sentence of another man. Details (MaltaMedia 02.04.2006). Comments. a) In nearly thirty years working as a confidential aide in the MN court system, I never saw any sign of corruption on the part of the many judges I came to know closely. b) If one were to offer a comparable incentive to a judge in MN, one perhaps would offer, say, $1,000 in lutefisk dinners, that is, lifetime free admission to the annual Christmas season lutefisk dinners at a well-known Lutheran church not far from the international headquarters of The Daily Judge.
Bagman in judicial bribes gets 20 months. "Norman Bowley, the purported 'bagman' of Bail Bonds Unlimited's scheme to boost profits by bribing state judges and Jefferson Parish sheriff's deputies, will go to jail for 20 months, a term the sentencing judge described as lengthy but commensurate with the 'greed and the public corruption clearly so evident in this case.'" More (New Orleans Times-Picayune 02.04.2006).
Judge's house auctioned because he profited from judgment. "In an unprecedented action, the house of a retired judge of the Calcutta High Court was auctioned on the directions of the Supreme Court after he was found to be a beneficiary of a judgment he had given...." More (Times of India 02.04.2006).
Appointment of high court judges becomes issue in MD governor race. "Whoever is elected governor in November will have an unusual opportunity to quickly shape Maryland's highest court because of the mandatory retirement of three of the seven judges in the first 18 months of the next gubernatorial term, raising the possibility of divisive fights over judicial nominations. The issue has already entered the political fray, with Gov. Robert L. Ehrlich Jr. reminding voters during this week's debate on a gay marriage ban that the state's chief executive appoints members of the Court of Appeals...." More (Baltimore Sun 02.04.2006).
The laborious process of removing smoke stench from courthouse. "The biggest change at the Marion County Courthouse in recent weeks isn't something you can see or even smell. It's what you don't smell. Gone is the stench of smoke that permeated the building after a Nov. 12 rampage in which a Keizer man smashed through the courthouse with a pickup and set fire to the building. 'Six weeks after the incident, the smell still knocked you out,' said Jim Murchison, the Marion County trial-court administrator, one of the county officials showing off cleanup progress Friday...." More (Salem Statesman-Journal 02.04.2006).
Judge crticizes jury over acquittals. "Northampton County Judge Stephen G. Baratta was not happy with a jury's decision last month to acquit a man on a host of serious charges and he let it show Friday. At sentencing for William Vanderslice Jr., Baratta said...the 12 people who sat on the Vanderslice jury probably have wondered at one time or another why there is so much violence in the community going unpunished. When it came time to make a difference, they balked, he said. 'They had an opportunity to do something with you and they let you walk,' Baratta told Vanderslice...." More (Express-Times PA 02.04.2006). Comment. A wise judge once said he'd never criticize a jury for acquitting someone, no matter how strong the judge himself viewed the evidence of guilt. We know prosecutors who follow the same rule.
Massachusetts' new gun court. "The dubious distinction of being one of the first defendants to appear in Massachusetts' new gun court Friday earned Jonathan Harris a stern lecture from Judge Robert Brennan. 'We start at nine,' Brennan told Harris when he stepped into court at 9:53 a.m...Brennan intends to dispose of cases involving illegal possession of firearms and other charges in 120 days after they are brought to court...." More (The Daily Item of Lynn 02.04.2006).
Electricity courts in Delhi. "The Supreme Court on Friday directed the Delhi High Court to set up five additional courts to exclusively deal with electricity related disputes in the Capital in two months...." More (Financial Express - India 02.04.2006).
Man urinates in front of judge in brand new courtroom. "Miguel Hernandez was appearing before Dane County Circuit Judge Diane Nicks in her newly appointed courtroom on the sixth floor [of the new $44 million Dane County Courthouse] for sentencing. The charge was throwing a bodily substance around the jail. Nicks sentenced Hernandez to three years in prison...Apparently unhappy with the sentence, Hernandez began urinating as he sat in his chair. It went on for some time, soaking not only his pants but the chair and the carpet as well...." More (Madison Capital Times 02.04.2006). Comment. Do Wisconsinites have a pee-culiar predisposition to "expressing themselves" this way? See our extended entry titled Herein of public urination and the law ("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....").
Justice Stephen Breyer on the interpretive tradition. "[The interpretive] tradition sees texts as driven by purposes. The judge should try to find and 'honestly...say what was the underlying purpose expressed' in a statute. The judge should read constitutional language 'as the revelation of the great purposes which were intended to be achieved by the Constitution' itself, a 'framework for' and a 'continuing instrument of government.' The judge should recognize that the Constitution will apply to 'new subject matter...with which the framers were not familiar.' Thus, the judge, whether applying statute or Constitution, should 'reconstruct the past solution imaginatively in its setting and project the purposes which inspired it upon the concrete occasions which arise for their decision.' Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences, including 'contemporary conditions, social, industrial, and political, of the community to be affected.' And since 'the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should be excluded.'" From a chapter excerpt from his book Active Liberty at New York Times Sunday Book Review (02.05.2006). Review. In an accompanying review, Kathleen Sullivan identifies as the book's "startling premise" that "self-professed conservatives who espouse textualism, originalism and strict constructionism often produce results that in fact turn our democratic tradition on its head...."
Free lunch for judges - literally. "Chief Justice Pius Langa, as head of the country’s judiciary, is to investigate why 51 Cape judges and their spouses attended a R25 000 Christmas lunch hosted by the marketing branch of Old Mutual Personal Financial Advisers...The tab, at R460 a head, was picked up by Old Mutual's marketing branch...." More (Cape Times - South Africa 02.03.2006). Comment. The news report is based on an investigative report in a South African investigative magazine cleverly titled Noseweek ("News you're not supposed to know") (online subscription required). According to the Cape Times, a forensic investigator says that Old Mutual's purpose was to promote the firm's products and that the next-step was to contact the judges individually and offer financial planning. In other words, the "free lunch" was like those "free dinners" at country clubs, etc., sponsored by financial planners, sellers of annuities, etc., that I'm regularly invited to (but not foolish enough) attend. The investigator says that the judges didn't know in advance that the lunch was hosted by Old Mutual and that "My sympathy is with the judges who were conned into going, as it places them in an invidious position...[T]his smacks of time-share marketing." Cape Judge President John Hlophe "usually" pays for the judges' annual Christmas lunch from a "discretionary fund." Why that practice wasn't followed this time isn't clear, but it all goes to prove the mom-ism or aphorism that there's no such thing as a free lunch. See, also, all the ads these days offering three months' free of this-or-that, with an asterik linking to tiny, unreadable print. It's all like the old cereal box prizes in the 1950's that said "Free of extra cost." Thanks, Mom, and thanks, General Mills, you taught me valuable lessons about the nature of freebies.
Judge: I'm going to Afghanistan. "Lehigh County Judge Thomas A. Wallitsch is retiring and heading to Afghanistan. Wallitsch, who has served on the bench for nearly 15 years, is announcing his retirement tomorrow at a press conference. In Afghanistan, he'll act as a senior legal and judicial consultant through the United States Agency for International Development. From mid-January to late April last year, Wallitsch went to Morocco as a volunteer, unofficial ambassador and representative of the American Bar Association and the U.S. State Department...." More (Allentown Morning Call 02.03.2006).
Judge Selah Lively. Here's a poem by Edgar Lee Masters, who was once a law partner of Clarence Darrow, from his wonderful Spoon River Anthology (1916), in which the occupants of the Spoon River Cemetery take turns speaking from the grave:
Judge Selah Lively
Suppose you stood just five feet two,
And had worked your way as a grocery clerk,
Studying law by candle light
Until you became an attorney at law?
And then suppose through your diligence,
And regular church attendance,
You became attorney for Thomas Rhodes,
Collecting notes and mortgages,
And representing all the widows
In the Probate Court? And through it all
They jeered at your size, and laughed at your clothes
And your polished boots? And then suppose
You became the County Judge?
And Jefferson Howard and Kinsey Keene,
And Harmon Whitney, and all the giants
Who had sneered at you, were forced to stand
Before the bar and say "Your Honor" --
Well, don’t you think it was natural
That I made it hard for them?
Hooponopono justice. "A federal judge [David Ezra] is offering Native Hawaiian groups an ancient means of settling their dispute over a cache of priceless artifacts: sitting in a circle, praying and asking one another for forgiveness. Hooponopono, a Native Hawaiian mediation process meaning “to make things right,” has traditionally been used to solve fights between brothers, disputes over family inheritances, and divorces...The judge gave the parties a tentative deadline of Feb. 24 for reaching an agreement through hooponopono...." More (San Diego Union-Tribune 02.02.2006).
Judge suspended for refusing to comply with Mussolini law. "An Italian judge [Luigi Tosti] has been suspended for refusing to work in courtrooms adorned with a crucifix -- the latest twist in a Europe-wide clash between secularists and those who want to assert the continent's Christian traditions. [Tosti] has refused to preside since May after authorities said he must not remove the crucifix from his courtroom wall...'I have a sacrosanct right not to work with a crucifix above my head,' 57-year-old Mr Tosti said. Italian authorities disagree...Laws passed under fascist dictator Benito Mussolini in the 1920s decree Italian schools and courtrooms must display the cross...." More (Melbourne Herald-Sun 02.03.2006).
Judge's daughters running the family bar. "The White House Cafe has been run by the family of Luzerne County Judge Chester Muroski for more than 60 years. The judge’s daughters, Lisa Ruzzi and Joy Reap, are now at the helm of the fourth-generation bar. Two serious shootings connected to the Hazle Street bar in less than a year are troublesome, but it’s hard to believe they could have been prevented by the bar’s staff, Ms. Ruzzi and Judge Muroski said Tuesday...." More (Scranton Times-Tribune 02.02.2006).
Big courthouse project planned for Cambridge, MA. "It [likely will] cost $130 million to modernize the Edward J. Sullivan Middlesex County Courthouse, including removal or containment of cancer-causing asbestos...The state plans to replace the 22-story building’s infamous elevators, and upgrade its systems from heating and air conditioning to electrical and plumbing. Carcinogenic asbestos fibers will either be taken out or encapsulated securely, said Kevin Flanigan, a deputy director of the Division of Capital Asset Management. [He] outlin[ed] a schedule that would call for relocation of employees, courts and prisoners in summer 2007. The work would take about three years, finishing in the middle of 2010, he said...." More (Cambridge Chronicle 02.02.2006).
Judging pitt bulls. Malcolm Gladwell, author of The Tipping Point and Blink, both best-sellers, has a useful essay in the 02.06.2006 issue of The New Yorker titled Troublemakers - What pit bulls can teach us about profiling. (Note: The essay presumably will make its way eventually to Gladwell's website, where he posts his New Yorker articles.) In the essay he examines, inter alia, the rationality of the Ontario legislature's banning in early 2005 of the ownership of "pit bulls" five days after three dogs identified as pit bulls viciously attacked an Ottawa, Ontario family. The essay deals with the use of generalizing (a/k/a "painting with a broad brush," a/k/a stereotyping), in decision-making and with the flaws in reasoning that often underlie generalizing.
The process of moving from the specific to the general is both necessary and perilous...Behind each generalization is a choice of what factors to leave in and what factors to leave out, and those choices can prove surprisingly complicated. After the attack [by the pit bulls], the Ontario government chose to make a generalization about pit bulls. But it could also have chosen to generalize about powerful dogs, or about the kinds of people who own powerful dogs, or about small children, or about back-yard fences -- or, indeed, about any number of other things to do with dogs and people and places. How do we know when we’ve made the right generalization?
The piece is of special interest to judges who, in the last 20 years or so, have been increasingly asked to consider, in various contexts, the admission of and weight to give so-called profile evidence and syndrome evidence. If I were creating a casebook for use in a course in legal reasoning or legal process, I'd include it.
Judges stand firm in opposing restructuring of judiciary. "Judges across the racial spectrum remain unanimously opposed to a draft law aimed at restructuring the judiciary and hope that Minister of Justice and Constitutional Development Brigitte Mabandla’s 'amenable nature' will save the day when the heads of court and government meet [tomorrow, February 2]. The meeting...will revolve around the 14th Constitution Amendment Bill, which would strip the judges of their administrative functions, empower the president to appoint judge presidents after consulting the chief justice, and place the Constitutional Court at the apex of the court system. Judges fear it will compromise the independence of the judiciary...." More (Mail & Guardian - South Africa 02.01.2006).
Supreme Court Justices refuse to recuse over spouses' roles. "Two Michigan Supreme Court justices whose wives work for state Attorney General Mike Cox ruled Tuesday they don't have to disqualify themselves from appeal cases that are argued by Cox's office. The unusual, 33-page statement by Chief Justice Clifford Taylor and Justice Stephen Markman appears to settle -- for now -- a lingering controversy surrounding their wives, Lucille Taylor and Mary Kathleen Markman...." More (Detroit Free Press 02.01.2006). Earlier. See, earlier detailed entry titled A mess of allegations, including over judges and their lawyer spouses, along with comment and embedded links.
Trying to try criminal cases in New Orleans. "Unless criminal district courts soon begin running again New Orleans, dangerous suspects will have to be released, the court's chief judge says. The criminal courts building is gutted, clean and almost ready to be occupied, Chief Judge Calvin Johnson. All the city-owned building needs is electricity, which could have been supplied by a generator months ago and the city's cooperation, he said...." More (New Orleans Times-Picayune 02.01.2006). Comment. It appears that the chief judge and the mayor don't see eye to eye on this. According to the story, the chief judge wants the court up and running within six weeks and the mayor is talking in terms of next summer.
Judge McFate's fate. "Yale McFate, the Maricopa County Superior Court judge who presided over the 1963 rape case that led to the U.S. Supreme Court's Miranda decision and the police incantation that starts 'You have the right to remain silent, died Jan. 28 of cancer. He was 96...." More (Arizona Republic 02.01.2006). Comment. Perhaps thirty-five years ago, before I settled on a Dinkytown barber to my liking, I had a haircut elsewhere from a barber whose claim to fame was, as he put it, "I once cut the hair of F. Melius Christianson." Christianson was the Norwegian immigrant hired in 1903 to teach music and direct the band at St. Olaf College. He's the guy who gave us the choral arrangement of "Beautiful Savior" we're all familiar with and who gave us the St. Olaf Choir and turned it into the world-renowned choir that it still is. Like the barber, whose tombstone perhaps says, "Cut F. Melius Christianson's Hair," some judges are known less for the quality of their judging than by the names of famous people whose cases they tried. Perhaps that is Yale McFate's fate. He ruled wrong in Ernesto Miranda's case, excluding the confession, and his exclusionary ruling was reversed by the U.S. Supreme Court. The obit says that according to Gary L. Stuart, author of a book about the Miranda case, "Judge McFate was never a fan of the Miranda decision. He believed the Constitution did not require police officers to remind defendants of anything." The obit says he presided over two other cases that made international headlines:
In 1960, he dismissed a drug possession charge against a Navajo woman who had been arrested for using peyote during Native American religious ceremonies. McFate ruled that banning the use of the drug was a violation of the woman's constitutional right to freedom of religion. The case was affirmed by the U.S. Supreme Court. And in 1962, following Arizona law at the time, he refused to allow Sherry Finkbine, star of a local children's educational TV show, to get a legal abortion. During her pregnancy, Finkbine had taken the drug Thalidomide, which had been found to cause birth defects. She later went to Sweden to have the abortion.
Mutiny on the Bounty II? "A Manchester judge [Senior District Judge Alan Berg] was at the centre of a passenger revolt on the world's largest cruise ship. Hundreds of passengers aboard the Queen Mary 2 had threatened mutiny after damage to the ship prevented any stops for nearly two weeks...." More (Manchester Evening News 01.31.2006). Comment. Perhaps it will be Judge Berg's "McFate" -- who knows? -- to someday be subject of an obit that mentions this incident as the most noteworthy incident of his life. :-) According to the story, the ship damaged a propeller when leaving FLA on another leg of an expensive 38-day cruise around South America. It returned to port, then set sail again but without having had the damaged propeller repaired. "[The ship] was running at a reduced speed, leading to its captain dropping three ports of call [including St Kitts and Barbados. Judge Berg] was among those complaining that the extent of the damage should have been revealed earlier, giving passengers the option of disembarking in Florida. In protest, travellers had threatened to stage a sit-in when the ship reached Rio de Janeiro, preventing her from continuing her journey...." Cunard at first offered the irate passengers a 50% refund but amended that to 100%. Speaking like a true lawyer/judge, Judge Berg is quoted as follows:
Many guests are on once-in-a-lifetime holidays and I have seen several in tears. Commonsense dictates that deducting only half the price of the cruise is totally insufficient. We have seen a lot of sea for the last 12 days. If I wanted to make a sea voyage on a liner to Rio I would have booked one -- but I booked a cruise. Inherently the definition of a cruise is that one stops at different ports.
My dad's paternal grandmother, Britha Eriksdatter Hanson, born 05.12.1855 (not 05.01.1853, as some family histories have it), came to the U.S. from Hafslo i Sogn og Fjordane, Norway with her family by sailboat in 1862. Because of unusually calm conditions, they were at sea an incredible 16 weeks. Some of their party died, some barely survived. Great Grandma Hanson, whom I was privileged to know the first twelve years of my life, died in 1955 at age 100, lucid and loving life until the end. It is interesting to juxtapose the two stories of hardship at sea: 16 weeks on the high seas in a small sailboat in 1862 without sufficient provisions vs. twelve days aboard the Queen Mary 2 in 2006 without stopping at three of the scheduled exotic ports of call. Britha's parents, Erik and Anna Hanson, didn't get refunds for themselves and their children -- I guess they didn't think to ask for them.
Federal judge's ruling on rigged judicial selection as opportunity. "There's a good chance the state's party bosses will use Albany to recapture control of the judge-making machinery. (Four out of five of the city's Democratic county bosses, after all, are members of the Assembly.) That means reform-minded political clubs and ambitious but honest lawyers need to hit the streets and start campaigning for [trial court judgeships] -- this year, while the historic window of opportunity is still open...." Errol Louis, It's time to beat the bosses at the judge's game (N.Y. Daily-News - Opinion 01.31.2006). Earlier. Federal judge halts rigging of judicial elections.
Ex-judge can't call self 'judge' in campaign for judgeship. "Arkansas judicial code bars past judges from using their former titles in campaigns for public office, a state advisory panel said in an opinion released Monday. Use of the title would be a misrepresentation, the Judicial Ethics Advisory Committee said in an opinion requested by a northeast Arkansas lawyer who once served as an appointed judge and who is running for a circuit judgeship...." More (Arkansas News Bureau 01.31.2006).
Crime hits home at the Old Bailey. "An Old Bailey judge presiding over the case of the Muslim cleric Abu Hamza warned the jury yesterday not to see the theft of his laptop containing notes on the trial as part of a conspiracy. Justice Anthony Hughes told the jury that they should forget reports in the Mirror newspaper, that reported the burglary of his central London flat, which was unoccupied at the time...." More (The Scotsman 01.31.2006).
Annals of alternative sentencing. "A Niagara County judge [Sara Sheldon Sperrazza] gave [Michael Guerra, a] 20-year-old Niagara Falls man[, a conditional discharge and] 30 days to enlist in the military at his sentencing on a misdemeanor charge of contempt of court last week. If [he doesn't enlist], he could be rearrested and resentenced to up to a year in jail. [The judge] imposed the sentence after Guerra's attorney said his client had been to a recruiter and wanted to join the Army but would not be able to if he was on probation...." More (Newsday 01.31.2006). Comment. Aliens are sometimes given deals like this in order to avoid being deported based on their having a criminal record. In this case the deal is designed to allow a de facto temporary "deportation" of a citizen via the indirect route of his voluntarily enlisting in the military and possibly (probably?) being deployed to a combat zone. I seem to recall reading that military recruiters didn't like it when judges would give defendants the option of jail or enlistment, but that was in the days when recruiters had an easier job filling their quotas. Perhaps times have changed.
Jeffrey Rosen on judicial memoirs. "[W]hile [Justice] Douglas was entertainingly indiscreet [in his two memoirs], [Justice Sandra Day] O'Connor's Lazy B: Growing Up on a Cattle Ranch in the American Southwest (2002), written with her brother H. Alan Day, was guarded to the point of banality. The carefully rehearsed anecdotes were sometimes charming (her Roosevelt-hating father enjoyed discomfiting O'Connor's fiancé, John, by offering him fried calves' testicles). But Lazy B -- and its successor Chico, which is written for children -- offered no more insight into her jurisprudence than The Majesty of the Law (2003), her bland collection of speeches and law review articles...." Judicial Exposure (N.Y. Times Book Review 01.29.2006). Comment. Most judges develop a kind of judicial cant, just as most ministers develop a ministerial cant, that is pathetic. They violate the Eleventh Commandment by taking themselves too damn seriously. One gets the impression they greet themselves in the mirror every morning by saying, "Good morning, Your Honor." They seem not ever to have been children. The various collections of Holmes' great letters are still my favorite judicial reading. Holmes' letters are all to people he treated as peers. There is no cant in them. They reveal the forever-young mind of a great thinker thinking. Moreover, Holmes is, as Frankfurter said, a literary genius of the highest order -- that is, a great writer with something to say. But Holmes was not writing his "Memoirs." I would think that the best court memoir would come from someone who somehow was both a court insider while at the same time maintaining an outsider's perspective. Perhaps a judge who leaves the bench in disgrace or one who has been off the court a number of years might manage it.
Annals of judicial colleageality. "In the Texas Court of Criminal Appeals' official portrait, Judges Sharon Keller and Tom Price are sitting next to each other. Everyone is smiling. Those smiles could disappear -- along with the collegiality among the judges at the state's highest criminal court -- when Keller and Price square off again in the March 7 Republican Party primary race to be court's presiding judge. Keller defeated Price in her first bid to be presiding judge six years ago. During the race, Keller's judicial experience and Price's work ethic were questioned. Since then, the gulf between the two has grown wider...." More (Fort Worth Star-Telegram 01.30.2006). Comment. We'd like to see the two Anderson's who are Associate Justices of the MN Supreme Court (Paul and G.. Barry) run against the Anderson who is now the Chief Justice (Russell) in the 2008 election. Of course it'll never happen here in the Home of the Nice and Bland. But it's amusing to imagine how such a campaign would proceed....
Recusing as inhibiting. "Opposition Sen. Jose 'Jinggoy' Estrada yesterday urged a Quezon City court judge to inhibit herself from handling the libel case filed against former Social Welfare and Development Secretary Corazon “Dinky” Soliman, citing conflict of interest. The senator’s call came after receiving reports that Quezon City Regional Trial Court Judge Branch 88 Judge Rosanna Fe Maglaya’s close associate is a 'good friend' of Philippine Amusements and Gaming Corp. (Pagcor) president Ephraim Genuino, a known close friend of First Gentleman Jose Miguel 'Mike' Arroyo...." More (The Daily Tribune - Philippines 01.30.2006).
Judge's comment raises ire. "Two opposition parties reacted angrily on Monday to reported remarks by a military judge that he finds official correspondence in Afrikaans 'disgusting'...The offending statement was made by military judge Lieutenant Colonel Mbulelo Mandela on January 18 last year during a trial in Cape Town. In his findings, Mandela reportedly said: '... I must say it on record that to me it is disgusting that at this time and age we still find official correspondence or official communication in Afrikaans....'" While English is "the official communication language of the SANDF," Afrikaan is "one of South Africa's eleven official languages." More (iAfrica 01.30.2006).
'Judicial system' as antonym for 'rule of law.' "An article in the winter edition of the quarterly magazine The National Interest has the rather arrogant title, Why Anglos Lead. Arrogant it may be, but the author, Lawrence Mead, a professor of politics at New York University, makes a powerful case that the successes of the English-speaking peoples spring from events dating back to the twelfth century. That's when independent royal courts gained authority over all of England...'The rule of law protected property and contract against force and fraud, and that was critical to the country's early economic dynamism,' he says...What has all this got to do with Mexico?...How can you have confidence in a contract if you think the other party might renege, then bribe the judge when you go to court?...Mexico's economy is based on the capitalist model. However, the judicial system remains an antonym for rule of law...." Kenneth Emmond, Mexico's biggest hurdle: cleaning up the courts (El Universal 01.30.2006).
Will court administrators ever stop asking for more judges? Here's an amusing headline from the Corvallis Gazette-Times in Oregon today, 01.29.2006: "Courts keep busy despite decreasing caseload." According to the story, "Benton[ County's] caseload actually has dropped from more than 12,178 total cases in 1998 to 9,270 in 2005, a 24 percent decrease, according to [a] report. Statewide, there was a 2 percent caseload drop during the same period." But Circuit Court Judge David Connell is quoted as saying that "Things have gotten so busy [at the courthouse] that the daily administration of justice is a challenge." Comment. a) In trying to explain the apparent contradiction and make the case for actually adding a judgeship, judges and the court administrator argue that the drop has been in minor cases and point out that "In recent years, the courts have placed greater emphasis on resolving cases, as opposed to merely trying cases. This has led to the development of settlement conferences, mediation and other programs." But wait, weren't those tools designed to reduce the number of cases going to trial -- not to help make the case for more judges? Perhaps they do need another judge. We don't know, although Oregon's "Judicial Department" apparently doesn't think the case is as strong as that of other counties: "Benton County ranked 22nd out of 26 districts in need for a new judge, according to a December 2004 Oregon Judicial Department report." In any event, we congratulate the court on reducing its caseload dramatically and suggest to judges and administrators in MN and elsewhere that perhaps they could learn a thing or two from the court. b) Not to change the subject, but we know of a great law school out east (hint: my alma mater) that has added a large number of faculty and added several luxurious new buildings in the last 40 years without significantly increasing the size of the student body and without turning out better lawyers. At least, that's our opinion. Is more always better? Is bigger always better? We don't know, although we think the Old Testament might suggest an answer or two. We merely ask questions in our curmudgeonly way and hold to perhaps out-dated opinions.
Retired judge publishes book of short tales. "[Judge John F.] Murphy, [Jr.,] who retired from the bench in 1997, has drawn on a half-century of experience as a judge, prosecutor and defense lawyer in putting together his first work of fiction, Seven Short Stories From the Criminal Court. Self-published through iUniverse, Inc., the book is available on demand from Amazon.com and Barnes&Noble.com. Starting with the cover photo of the courtroom in the old Hampshire County Courthouse (taken by Judge David Ross), the 107-page book is bound to conjure up memories for those familiar with the local criminal justice scene...." More (Springfield Republican MA 01.29.2006). Comment. We're always willing to review a book like this if provided with a reviewer's copy, preferably in advance of publication. We wrote a couple book reviews for the ABA Journal back in the 1970's.
Retired judge publishes book about his federal nomination process. "Charles Pickering, a retired federal circuit judge who for years was embroiled in a bruising confirmation process after being nominated by President Bush to the 5th U.S. Circuit Court of Appeals in New Orleans, is finally telling his side of the story. With his new book, Supreme Chaos - The Politics of Judicial Confirmation & the Culture Wars, Pickering delves into the gantlet judicial nominees are subjected to, the culture wars that brought about such political battles and the danger of judges legislating from the bench...The hardest part of the process, sa[ys] Pickering, was 'being cross-examined like a criminal.'" More (Biloxi Sun-Herald 01.29.2006). Comment. To quote a great man, "We're always willing to review a book like this if provided with a reviewer's copy, preferably in advance of publication."
Congress considers removing ban on televising federal trials. "U.S. Rep. Steve Chabot, R-Westwood...added a provision to a court security bill in November to give federal judges, including Supreme Court justices, the option to allow cameras. That bill passed on a 375-45 vote and now is in the Senate. Current rules bar cameras from all federal trial courts and give appeals courts the option to broadcast proceedings. So far, only two federal appeals courts, one in New York and one in California allow cameras...State courts began experimenting with cameras in courtrooms more than 25 years ago. Now, all 50 states allow some access to cameras. Chabot said the federal courts should be no different...." The article addresses the pro's and con's. More (Cincinnati Enquirer 01.29.2006).
Latest news from a judicial hellhole. "Madison County's judges don't like it when they're characterized as tools of the local plaintiff's bar. But the next time one of them complains about it to us, we'll direct them to The Record reporter Steve Korris' story this week about the lonely Don Weber. In his four months on the job, the Third Circuit's only Republican judge has been avoided like the plague. Korris reports that the hottest trial lawyer hotshots in the Metro-East are doing all they can to move their cases out of Weber's courtroom. Which begs the question: what are they so afraid of?" More (Madison County Record - Editorial 01.29.2006). Earlier. "Plaintiff attorneys have turned Madison County Circuit Judge Don Weber [who was appointed in October] into a robed ghost by yanking at least 35 big cases out of his court. They accomplished this by moving for substitute judges. In Illinois, a party to a civil case can move once for substitution without cause, if the judge has not made any substantial ruling. The judge must grant the motion...As a result, Weber will run for election in November with no record in the kinds of cases that have made Madison County a litigation magnet -- consumer class actions, negligence, product liability and medical malpractice...." More (Madison County Record 01.25.2006). Comment. Interestingly, to those who say judicial elections have no place in judicial selection because voters can't be trusted to pick good judges, consider this (from the above-cited editorial):
In November 2004, when Republican Lloyd Karmeier won the honor of representing Southern Illinois on the State Supreme Court, he did so by winning the support of tens of thousands of crossover voters. Those Democrats believed our justice system, long controlled by a single party, was in serious need of balance. Many of them live here in Madison County, obviously, where Karmeier incredibly earned 60,956 votes to Gordon Maag's 57,158.
The Silvertooth Judicial Center? "The Sarasota County Judicial Center will be renamed the Judge Lynn N. Silvertooth Judicial Center in a naming ceremony and sign dedication on Feb. 23 at 1 p.m...." More (Venice Gondolier FLA 01.29.2006). Comment. a) We don't think "judicial centers" should be named after individuals. b) We don't think courthouses should be called "judicial centers."
Judge says he still loves incarcerated wife. "After Brenda Mott's sentencing was concluded, Judge Mott was asked if he wished to make any statement for the record. 'I love my wife,' Judge Mott said. 'Love bears all things. I believe love and hope will never fail. I love my wife.' The judge declined to comment further on the subject...." More (Towanda Sunday Review 01.29.2006). Earlier. Annals of judicial spouses.
Federal judge halts rigging of judicial elections. "A federal judge yesterday struck down the system that has given state political party leaders a stranglehold over the way top trial judges across New York State have been elected for decades. In a decision that could have a lasting impact on the judicial selection process across the state, the judge, John Gleeson of the United States District Court in Brooklyn, found the system unconstitutional and ordered it halted immediately...." More (N.Y. Times 01.28.2006).
Three Senators want to end judicial junkets. "Three senators on Friday proposed new limits on expense-paid trips for federal judges and a system to let the public know about potential courthouse conflicts. Judges would be barred from taking free trips to seminars sponsored by special interests, although they could participate if their courts paid their ways, under the proposal by Sens. Patrick Leahy of Vermont, John Kerry of Massachusetts and Russ Feingold of Wisconsin, all Democrats...." More (Washington Post 01.28.2006). See, also, Tony Mauro, Political spotlight shines on judicial ethics (Legal Times via Law.Com 01.30.2006). Comment. Here are links to our most recent expostulations on judicial junkets: Will Senator's response to junket exposé affect judicial junkets? and Judicial 'Educational' Junkets.
Annals of judicial spouses. "Brenda K. Mott was sentenced this afternoon in Bradford County Court to not more than 18 months in a county jail and ordered to pay restitution of more than $600,000 in connection with stealing money from the Canton Boro Authority. Mott, the wife of county judge John Mott, was ordered taken into immediate custody...." More (Towanda Daily Review 01.28.2006). Special BurtLaw Q & A (with our resident expert, Dr. F. Lavoris Pusso, Ph.D., SuperNintendent):
Q - Is there an epidemic of crime -- thievery, armed robbery, burglary, extortion, rape, murder, assault, etc. -- committed by spouses of judges?
A - We're unaware of any such epidemic.
Q - But is an epidemic possible?
A - Every epidemic starts with one case. Whether this is the start of an epidemic is something we won't know until time has passed, will we? To answer your question, anything is possible.
Q - Is there anything we can do to prevent such an epidemic?
A - Judges should, of course, keep an eye on their spouses for any changes in behavior. It never hurts to enlist judicial "issue" (i.e., children) in these quintessential judicial problems and their prevention and/or solution. A judge, e.g., might suggest to little Jimmy and little Jessica that they unobtrusively monitor the non-judicial parent's behavior and report regularly and frequently to "the judge" -- by memo, e-mail, voice-mail and text messages -- during the day when the judge can't monitor the spouse personally.
Q - What may a concerned citizen do to help prevent such an epidemic?
A - To paraphrase Jefferson, be eternally vigilant.
Littlejohn's judicial history of SC. "Former South Carolina Supreme Court Chief Justice Bruce Littlejohn may be retired from the bench, but the 92-year old has not slowed down much. On Friday, he signed copies of his fourth book at the state bar association meeting in Charleston...." The book's title is Littlejohn's South Carolina Judicial History 1930 to 2004. More (WIS TV 01.28.2006). One may order a copy from the South Carolina Bar Foundation. Its website contains an excerpt, and the brief passage below is an excerpt from the excerpt:
From the adoption of the Constitution of 1895 until the year 1955, judges and others required to take an oath of office had to swear that they had not engaged in a duel as principal, second or otherwise since 1881. I took such an oath of office 11 times, each time swearing that I had not engaged in a duel since 32 years before I was born. And I had to swear I would not, during the term of office to which I had been elected, engage in a duel as principal, second or otherwise.
Yemen moves toward independent judiciary, rule of law. "Last week, the Cabinet took a courageous and unique decision regarding the Chairman of the High Judicial Council. The Cabinet’s decision, once ratified by Parliament, will ensure that the head of all justice in the country will be completely independent, will be freed from any other commitments, and spend their time fully dedicated as a judge. Most importantly, it will also create a legal framework that will ensure a formal split between the powers of the presidency and the judiciary, ensuring its independence. It will also make sure that the Chairman is both qualified and experienced, as the law will rule that no one less than a Supreme Court judge can take up the position...." Details (Yemen Observer - Editorial 01.28.2006).
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