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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.
Sniper shoots judge standing by window in courthouse. "A family court judge [Chuck Weller, 53] was shot and wounded as he stood near a third-floor courthouse window Monday, and police were looking for a man suspected in a slaying across town who had appeared before the judge in a divorce case...." More (Chicago Tribune 06.13.2006).
State's highest court removes judge who helped suspect avoid arrest. "A [New York] state [trial judge, Justice Laura Blackburne,] accused of helping a suspect evade arrest...was thrown out of office Tuesday by the state's highest court...[In 2004] she told a court officer to escort robbery suspect Derek Sterling out a rear door to an elevator reserved for judges and out of sight of a detective waiting for him [outside her courtroom]...In a 5-2 ruling, the [Court of Appeals, New York's highest court,] said Blackburne 'placed herself above the law she was sworn to administer, thereby bringing the judiciary into disrepute and undermining public confidence in the integrity and impartiality of her court.'" More (Newsday 06.13.2006). Comment. One spur-of-the-moment decision, perhaps a lapse in judgment, by a busy trial judge and -- poof! "You're off the bench!" More and more, as I survey judicial conduct decisions by judicial conduct commissions and state supreme courts on a daily basis, I'm coming to the conclusion that some of them seem to think the standard to which a judge must be held is absolute, unwavering perfection. But where is the perfect judge? I've never met him. Judges make mistakes, as we all do. I must say that I doubt if many judges make it to the finish line without having done something that, if it had seen the light of day, might have caused the ethics folks to have conniptions. The dissenters got it right. An isolated, spur-of-the-moment admittedly-bad decision made in good faith by a judge with a clean record ought not result in removal. I'm inclined to think Judge Blackburne was the victim of a hysterical over-reaction stirred up by police and tabloid newspapers. Justice Frankfurter said once (while vacationing in England), "There are, as you well know, periodic newspaper crime waves in the United States. Popular feeling is excited to fluctuate between being sentimental and being harsh." Our papers have long experience in creating "newspaper crime waves" and in manipulating popular feeling. Of late, some newspapers have been doing their worst to "excite" popular feeling "to fluctuate between being sentimental and being harsh" with respect to judges. By the way, while it's low for newspaper publishers and local TV news shows to sensationalize judicial misdeeds, it's lower for a President or other politician to use that old bugaboo, judicial activism, to stir up his base. Stirring up one's base -- maybe even having a base -- is inherently base. Perhaps that's why good people generally don't do well at politics or any of the many other things in our contemporary consumer culture that have become just a subcategory of "sales/marketing." P.P.S. Here's another "by the way": Judge Blackburne is a black woman. Might things have gone differently for her if she'd been an Irish male judge with friends in the police department and the press? I have no way of knowing. I merely pose a question that I can't help posing.
Judge is admonished for ex parte contacts, other wrongs. "The state's judicial ethics watchdog has publicly admonished an East Bay judge for his conduct in several cases. Contra Costa County Superior Court Judge Bruce Clayton Mills held ex parte talks -- discussing the case with the defense without prosecutors present, and vice versa -- in a misdemeanor theft case spanning 1997-98, according to a decision issued Monday by the Commission on Judicial Performance. The decision also said he improperly assumed a prosecutorial role in a 2005 misdemeanor theft case which he says he believed should have been tried as a felony. And Mills in several cases made 'sarcastic, demeaning and belittling comments to attorneys and litigants appearing before him....'" More (Argus 06.13.2006). Comments. Ex parte contacts -- always a bad idea. Demeaning other people -- ye olde Golden Rule forbids that. And so it goes....
Judge is admonished for using judicial stationery for personal matters. "A Los Angeles trial judge[, Joseph Di Loreto,] was reprimanded Tuesday by a judicial watchdog agency for unethically writing a letter on office stationery [in 2004] to try settling a personal dispute...The commission also reprimanded him in 2001 for using judicial stationery in a different dispute...." More (San Jose Mercury News 06.13.2006). Related issue, different judge. Judge apologizes for using court stationery. Comment. My guess is that there are a lot of judges "out there" who use court stationery -- which, by the way, can be very expensive for the taxpayers, especially if the paper is 25% cotton fiber and the official seal on the letterhead is gold-embossed -- in a way that could get them in trouble. Jurisdictions may differ over what's proper use of stationery, what's not. Here's an ethics opinion that was rendered in Washington state in response to an unusually detailed series of related questions regarding stationery use:
It is proper for a judge to use official stationery to arrange social functions between judges since such use cannot exploit the judicial position. (CJC Canon 2(A)).
It is not proper for a judge to use official stationery to inquire about the judge’s personal or real property assessments, license or automobile registrations or to conduct correspondence with another governmental agency outside the judiciary regarding person business matters since such could give the appearance of exploiting the judicial position. (CJC Canon 2(A)).
It is not proper for a judge to use official stationery to correspond with a court in another county or jurisdiction where a family member has a matter pending and the correspondence relates to the pending matter as it could lend the prestige of the office to advance the private interests of the family member. (CJC Canon 2(B)).
The question as to whether official stationery purchased by a judge at personal expense should designate such was not paid for at public expense is not an ethical question since disclosure of the source of funds used to purchase the stationery is not dispositive in determining appropriate usage.
A judge may have personal stationery printed which bears the title judge as long as such could not be confused with the judge’s official stationery and is not used to exploit the judicial office. The personal stationery should omit the judge’s official address and again the use should be consistent with the above.
It is permissible for a judge’s personal bank check or credit card to bear the title judge if it is not displayed for purposes or used in a manner which would appear to exploit the judicial position. It is not proper for a driver’s license to bear the title judge.
Once Judge Atlee was a powerful figure in Clanton, Mississippi -- a pillar of the community who towered over local law and politics for forty years. Now the judge is a shadow of his former self, a sick, lonely old man who has withdrawn to his sprawling ancestral home. Knowing the end is near, Judge Atlee has issued a summons for his two sons to return to Clanton to discuss his estate. Ray Atlee is the eldest, a Virginia law professor, newly single and still enduring the aftershocks of a surprise divorce. Forrest is Ray’s younger brother, who redefines the notion of a family’s black sheep.
The summons is typed by the judge himself, on his handsome old stationery, and gives the date and time for Ray and Forrest to appear in his study....
Was it proper for Judge Atlee to use his old court stationery? (Why do you assume it was official stationery?) What judge, active or retired, does his own typing? (Why do you assume judges are helpless?) May a judge take what's left of his old court stationery with him when he retires? (If not, isn't that wasteful?) d) "The judge bought marijuana by mail. He paid with a cashier's check, and he used the office stationery. The envelope bore a handsome imprint: 'Philip Marquardt, Superior Court Judge, Phoenix, Arizona.''' From Adam Liptak, Judge's Drug Use at Issue in 2 Death Sentences (NYT 05.16.2002).
South Dakota court's 'weed' problem. "After reporters pointed out that wild marijuana, commonly called ditch weed, was growing on the lawn at the federal courthouse in Sioux Falls, the greenery was eliminated. City officials and a developer said seeds in dirt brought in for construction must have sprouted...." More (Washington Post 06.12.2006). Comment. Justice Brandeis wrote, "Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example." What sort of example, one is tempted to ask, are the judges in Sioux Falls setting for the youth of that troubled state by eliminating that which is natural and green and organic? :-)
Requiring judges to attend cultural courses is 'bizarre in the extreme.' "A 'patronizing' state government plan to force judges to attend computer and cultural courses has been slammed as 'bizarre in the extreme.' State Attorney-General Rob Hulls has moved to send judges back to school to improve their computer skills and learn about indigenous and foreign cultures...Although he said judges would decide the nature of the courses, Mr Hulls nominated information technology, Vietnamese cultural studies and Aboriginal studies as potential course topics...." More (The Australian 06.12.2006). Comment. Minnesota was either the first state or one of the first states to require judges to take courses on eliminating gender, racial, and cultural bias in the courtroom. Lawyers in MN are also required to take a two hour course in the subject as part of their 45 hours of continuing legal education credits every three years. Judges are as prone to trendiness and fashion as "ordinary people" are, and therefore it is not surprising to me that the Minnesota model has caught on elsewhere, even, it seems, in Australia. The curmudgeon in me wishes to note that I've attended one of these courses every three years since the requirement was adopted and I don't recall anyone ever mentioning age bias in the courtroom. But that's not surprising, in view of the fact that the Minnesota Supreme Court itself has embraced discrimination in the judiciary, specifically, that form of discrimination that masquerades under the benign phrase "mandatory retirement of judges." See, BurtLaw on Mandatory Retirement of Judges. But I don't mean to be overly critical of the court. We all have our blind spots. My alma mater, that great but harsh, rigid old institution, Harvard Law School, despite the presence in its corridors of some of the greatest legal minds in the world, didn't admit women until 1950 (and even then and for many years thereafter in only small numbers). Moreover, in the early years after women were first admitted, including when I was present as a student in the mid-1960's, the atmosphere of that austere place was even more unfriendly to female than to male students. Years from now I'm convinced we'll look back on mandatory retirement of judges and really see it for what I believe it is. Once again, our legal gyros, who should be able to recognize discrimination when they see it, in fact are proud supporters of it -- just as, I might add, they have been staunch defenders of rules limiting the free speech of judicial candidates. Those rules were correctly declared unconstitutional by the United States Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), but the court and the Board of Judicial Standards arguably have been reluctant in complying with White. On this, see, i) Group-think on judicial selection, ii) SCOTUS declines review of USCA's case on judicial campaigns, iii) Speaking of the MN judicial system... iv) Blatz again blazts judicial elections, v) Blatz blazts politicization of judicial campaigns, vi) Free speech is a 'bad idea'? and vii) BurtLaw's Law & Judicial Elections. Perhaps, in this superannuated critic's First-Amendment-protected opinion, the judges ought to be required to take continuing education courses both in complying with the First Amendment and in eliminating age discrimination in the courts.
Q & A: Changes in ancient system of coroners' courts. "The government has announced its proposed shake-up of the ancient system of coroners' courts.
But how will that affect the way coroners deal with inquests?" More (BBC News 06.12.2006).
Phantom of the courthouse? "If you hear ominous music coming from the Historic Collin County [TX] Courthouse late at night, don't be afraid. It's not the Phantom of the Courthouse. It's probably just Rick Mathews, owner of Dallas Organ Works of Richardson, and his crew testing, tweaking and repairing...the [vintage 1927 'Mighty Wurlitzer'] theater organ donated by the North Texas Chapter of the American Theatre Organ Society...." More (McKinney Courier-Gazette 06.12.2006).
Secular Turks and Islamists fight for supremacy in courts. "When it comes to negotiating the treacherous faultlines of Turkey's fast road to modernity, chewing gum and garlic can make a dangerous cocktail. As Veysel Dalci, a leader of the governing party of pragmatic Islamists in Ordu on the Black Sea, stepped up to place a wreath at a monument to Ataturk -- Father of the Turks -- on Sovereignty Day, he was seen chewing gum. The Turkish prosecution service went into action and Mr Dalci was charged with the crime of insulting Mustafa Kemal, better known as Ataturk, a national hero. Mr Dalci, who was held for 48 hours before being bailed, is awaiting trial and could face three years in prison...." More (Guardian Unlimited 06.12.2006). Comment. On some level, "fights" of this sort are going on in many, many countries, even -- especially -- our own.
Arnold Schwarzenegger reappoints judge just defeated at polls. "Less than 72 hours after the Los Angeles County electorate replaced Judge Dzintra Janavs with a bagel store owner with limited legal experience, Gov. Arnold Schwarzenegger announced Friday that he would reappoint the veteran jurist to a vacant seat on the bench 'as soon as she completes the paperwork.' In Tuesday's election, Lynn Diane Olson, who co-owns Manhattan Bread & Bagel in Manhattan Beach with her husband and has barely practiced law in the last decade, bested Janavs, a 20-year veteran of the bench...." Many people, including Schwarzenegger, believe Janavs, who is Latvian-born, lost to Olson because of her Latvian name. Said Schwarzenegger: "I can relate to the problem of having a name that is hard to pronounce." More (L.A. Times 06.10.2006). Comment. Janavs' colleagues on the bench (presumably of the There-but-for-the-Grace-of-God School of Jurisprudence) were reportedly upset by Janavs' defeat. One colleague reportedly even complained of "physical symptoms of illness." Id. The Times editors are expressing mild disapproval of Schwarzenegger's decision ("[T]hough in this case his decision is justifiable, it's not something a democracy should encourage...We cannot simultaneously pretend that we respect voters' decisions and then overturn them if we think they were wrong."). More. Technically, Schwarzenegger didn't "overturn" the voters: Olson will take over Janavs' seat by virtue of direct election, and Janav will fill a vacancy by appointment.
D.C. Ct. of App. oral arguments now online. "The public may now listen to arguments held before the District of Columbia Court of Appeals without having to attend in person, thanks to new technology instated June 7 that provides real-time audio coverage via web streaming. Similar technology has been put in place in 21 states including California, Florida, New York, and Texas...Oral arguments are broadcast live and may be accessed only during that time. Previous arguments cannot be accessed through this service." More (D.C. Bar - press release). More info and link to live arguments. Comment. For such a service to be useful, courts need to make it possible to listen to previous arguments online, something our local public radio station has little trouble doing with prior broadcasts. Few people, most of whom are working at the time oral arguments are presented, will be able to listen to oral arguments "live." This is thus yet another example of hard-working taxpayers getting short-shrift, as in working all week and then on their day off finding their brand new hugely-expensive public library closed.
Scalia update. "[Justice] Scalia mystified the audience somewhat by revealing one complaint he had about [Solicitor General Paul] Clement: the black vest he wears to the Court with the customary swallow-tail morning coat as solicitor general. Scalia insisted the vest should be a pearl gray, and he thought Clement had broken with tradition. 'As you know, all change is presumptively wrong,' Scalia said, only half-joking. But the justice said he had the Court curator look up the history of the outfit, and, sure enough, Clement was right [and Scalia wrong]; black is the proper and traditional color for the SG's vest...." More (Legal Times via Law.Com via Biz.Yahoo 06.09.2006). Comment. Yet another example of the less-than-perfect reliability of recollections and descriptions provided by honorable eyewitnesses.
Special rules keep some bad judges 'under radar.' "One Nevada judge was nearly indicted on blackmail charges. Another ruled repeatedly for a casino corporation in which he held more than 10,000 shares. Still another overruled state authorities and decided in favor of a gambling boss who was notorious as a mob frontman, and whose casino did the judge a $2,800 favor. Yet the Nevada Supreme Court has conferred upon these judges a special distinction that exempts them from some of the common rules of judicial practice and reduces their accountability. They are among 17 state judges whom the high court has commissioned as senior judges...." How does being a "senior judge" keep one "under the radar"? In this the fourth in-depth article in an investigative series that likely will win it some awards, the L.A. Times points to the fact that "senior judges are not answerable to the voters, but serve at the pleasure of the high court, and that can mean for life," the fact "they can reject assignments until they are given a case they want to try," the fact "they cannot be removed from a case by peremptory challenge," and the fact that "until last year, they did not have to disclose their financial interests." More (L.A. Times 06.10.2006). Earlier. For judge and friend, one good turn led to another - Stacked judicial deck' in Vegas? - A Vegas judge who isn't playing fast and loose with the rules.
That courthouse mural depicting hanging tree and noose. "Lester Gibson first noticed the hanging tree and noose in the McLennan County Courthouse mural when he became county commissioner 15 years ago. Former county employees who are black have told Gibson stories of being paraded past the noose 25 years ago and reminded of what happens to blacks who don’t stay in their place...." More (Waco Tribune Herald 06.11.2006). Some people want the county commissioners to display in the courthouse a copy of a recently-passed resolution the local judiciary condemned past lynchings in Waco, but thus far the board has refused. Id. Comment. Just 86 years ago this coming Thursday, June 15, in Duluth, right here in "nice Minnesota," members of an angry mob made up of the good men of Duluth broke into the police station and into some cells, pulled out three young black circus employees arrested on suspicion of raping a local girl, and dragged them up a hill and lynched them. Afterward, they were so proud of what they'd done that they posed for photographs next to the hanging bodies. One of those photographs was even made into a post card. Click here and here for photographs and details. It has always seemed to me that the line between savagery and civilization is a pretty thin one. Scratch the surface of a man and don't be surprised if you find a tiger. We ignore this reality at our peril. The men who wrote many of the books of the Old Testament understood what a contradiction is man, capable of great things and utterly base things. And fortunately for us, the drafters of our Constitution also keenly understood human nature. How else explain the brilliant system of myriad and intricate checks and balances they so wisely crafted?
Sinclair Lewis on nice Minnesota racism. No 20th Century American writer of note merits re-reading more than Minnesota's own Sinclair Lewis. I've re-read several of his books in recent years and benefited from each of them. One of them is his 1947 novel of northern racism, Kingsblood Royal, set in a barely fictionalized Duluth. Want greater insight into the so-called "religious" right? Read his Elmer Gantry (1927). Want to better understand how politicians use an event like 09.11 to justify all manner of Governmental immorality? Read It Can't Happen Here (1935). Want to understand the small town of your youth? Read Main Street (1920). Want to understand the Babbits who still run this country? Read Babbit (1922). Medical research? Arrowsmith (1925). The romantic woes of a Minnesota trial judge? Cass Timberlane (1945).
Tips for judges on spotting really annoying litigants. "Want to spot the 'difficult' complainant? Go straight to the handwriting and keep an eye out for the overflowing briefcase. That's the advice from a psychiatrist, Grant Lester, who has given judges in NSW tips on recognising and handling such people. Writing in the Judicial Officers' Bulletin, Dr Lester says...[m]en are four times more likely than women to be 'difficult,' and middle-aged men with failing or broken marriages are the worst offenders. [He] says their written communications feature exclamation marks, underlining, the use of capitals, highlighting and, if typewritten, heavy use of the asterisk. 'Cut-outs from newspapers, personal diaries and irrelevant material abound....'" More (Sydney Morning Herald 06.09.2006). Comment. Judges don't need help from a psychiatrist in spotting annoying, typically pro se, litigants. After a few experiences with them, one can spot them a mile off.
SCOTUS road trips. "Supreme Court justices crisscrossed the world last year, with stops in Bangkok, Paris, London and Prague, and less-exotic places like Omaha, Neb., and Morgantown, W. Va. Financial disclosure reports released Friday show that several justices got out of Washington a good bit in 2005 at the expense of law schools and legal groups. The reports also show new Chief Justice John Roberts easily in the ranks of the court's millionaires...." More (Washington Post 06.09.2006). Comment. One of them took 14 expenses-paid trips, another 15. Least peripatetic? Souter, who took one expenses-paid trip -- to his alma mater, Harvard Law.
Judges used clout to avoid DWI charges. "A government judicial watchdog agency publicly censured two trial judges Thursday after each admitted using their judicial clout in failed bids to avoid drunken driving charges. The Commission on Judicial Performance stopped short of removing the two from the bench. Instead, the commission publicly castigated Sonoma County Superior Court Judge Elaine Rushing and Riverside County Judge Bernard Schwartz for trying to finesse their way out being arrested for driving under the influence...." More (Contra Costa Times 06.09.2006).
For judge and friend, one good turn led to another... "Without help from a friend, James Mahan might never have become a Las Vegas state judge. Certainly he wouldn't have gotten one of the top judicial jobs in town: a lifetime appointment to the federal bench. Then again, without Mahan, his friend George Swarts would never have gotten to run an Internet porn business, a hotel-casino hair salon or a Southern California software company. Indeed, the careers of Judge James C. Mahan, 62, and his friend George C. Swarts, also 62, whom he appointed again and again as a receiver to manage troubled businesses, might be the ultimate example of how juice replaces justice in Las Vegas courtrooms...." More (L.A. Times 06.09.2006). Earlier. 'Stacked judicial deck' in Vegas?
State supreme court says it can't decide judicial selection case. "A Lowcountry lawyer is clear to become a circuit judge after the state Supreme Court ruled it could not decide a lawsuit challenging her qualifications for the seat. The suit was filed two days after Carmen Tevis Mullen was elected in February by the Legislature to take over an open judgeship. It claimed the commission that screens lawyers failed to properly review Mullen's qualifications because she lived outside the circuit she was elected to...[T]he justices said they could not hear the case...because they would be overruling a discretionary decision of another branch of government -- in this case the Legislature...." More (Myrtle Beach Sun 06.09.2006).
State supreme court says it can't take up misconduct case against judge. "A closely divided Virginia Supreme Court refused yesterday to consider misconduct allegations against a Portsmouth judge who was suspended nearly two years ago. The court ruled 4-3 that General District Judge Archie Elliott had signed a supervision agreement with the Judicial Inquiry and Review Commission allowing him to return to the bench providing certain conditions were met...." More (Richmond Times-Dispatch 06.09.2006).
Appeals court judges sued for bias, retaliation. "Two judges on the Arizona Court of Appeals are being sued in federal court by a former law clerk and a current court employee who allege that their civil rights were violated. In a lawsuit filed Tuesday, Regina Pangerl accuses Judge Susan Ehrlich of discriminating against her because she is Mormon and accuses Judge Sheldon Weisberg of intimidation and of covering up an investigation into Ehrlich's behavior. And in a second suit, Luz Hellman, who is married to one Court of Appeals judge and works for another, accuses Weisberg of intimidation and retaliation after she leaked a pair of internal memos related to Pangerl's complaints against Ehrlich...." More (Arizona Republic 06.09.2006).
Prosecutor: "swinger-style" sex ring was run from Ozarks courthouse. "[Mike Anderson, t]he prosecutor in a rural Ozarks county alleges [in a lawsuit] that a former employee and a county court worker ran a 'swinger-style' sex ring from the courthouse as part of an effort to tarnish his name and run him out of office...Anderson's lawsuit...claims he is the victim of a smear campaign by a former employee of his office...and a current employee of the associate court...[One of the two] earlier filed a sexual discrimination complaint against Anderson with the Equal Employment Opportunity Commission, the prosecutor said in a news release this week. Anderson denied the charge and said he has asked the EEOC to send an investigator...." More (Belleville News-Democrat 06.09.2006).
Judge orders counsel to use 'rock, paper, scissors' to decide dispute. "A United States federal judge [Gregory Presnell], miffed at the inability of opposing attorneys to agree on even the slightest details of a lawsuit, ordered them to settle their latest dispute with the hand-gesture game of 'rock, paper, scissors.' The argument was over a location to take the sworn statement of a witness in an insurance lawsuit...Presnell scolded both sides and ordered them to meet at a neutral location at 4 pm on June 30 to play a round of the game often used to settle childhood disputes...." More (Mail & Guardian 06.09.206). Comment. Out of coins but desperately need to toss one to decide an issue? Try Virtual Coin Toss.
Embattled judge to step down. "Embattled 16th Judicial Circuit Judge James Doyle is retiring from the bench -- a move that negates a state board's complaint that he violated defendants' constitutional rights while presiding over the Kane County Drug Rehabilitation Court...." More (Aurora Beacon-News 06.09.2006).
No permit for political rally at courthouse. "Auglaize County [Ohio] commissioners denied a request by local Democrats to use the courthouse [in Wapakoneta] for a rally and ice cream social in support of gubernatorial candidate Ted Strickland. Commissioner Ivo Kramer said the decision this week was not based on politics, despite the fact that all three commissioners in the western Ohio county are Republicans. On Feb. 14, the commissioners unanimously adopted a resolution that prohibits public events on the grounds of the...courthouse...." More (San Jose Mercury News 06.08.2006). Comment. We like the idea of county courthouse as multi-purpose center of public activity, fortified not by barriers and metal-detectors and searches and sheriff's deputies and signs saying "Nothing is permitted here" but by the voluntary presence and activities of those who own the courthouse -- i.e., "the people" (or, as Henry Fonda, channeling Abe Lincoln, pronounced the word, "pee-pull"). Back in the 1920s and 1930s in my hometown, huge crowds turned out for political rallies on the courthouse steps, to hear, for example, a speech by the mesmerizing Gov. Floyd B. Olson or one by Rev. O.J. Kvale, the Farmer-Laborite Norwegian-Lutheran minister who defeated Andrew Valstad, the Representative whose name was given to the national prohibition law. Our vision: art shows, community band concerts, ice-cream socials, elaborate flower gardens maintained by local garden clubs, political rallies, Chautauqua-style speeches, Apple-Blossom Festivals, weddings, etc. -- all on the courthouse lawn, on the courthouse steps, or inside the courthouse. Sadly, more & more courthouses are becoming fortresses & their owners, the people, are being made to feel less & less welcome. See, Building courthouses with security in mind, BurtLaw and Montaigne on Court Security, and How about a courthouse surrounded by & filled with flowers? And read on....
Re-beautifying an uglified courthouse. "The Polk County Courthouse is one of the state's most important public buildings on one of the most important civic sites in the heart of downtown Des Moines. Now, alas, it has an asphalt parking lot and an forbidding iron fence with a locked gate in front of what should be the main entrance. It is the functional equivalent of defacing a public building...Yes, judges need security, but the fenced parking lot is an architectural travesty. The 8-foot-tall iron fence looks like it belongs in front of the jail, not the people's courthouse...Making matters worse, the county also gouged out what little grass there was on the courthouse square and covered it with asphalt for judges' cars. The fenced parking lot is just another indignity done to the courthouse, which now has only one public entrance -- on the south side of the building, where the public is immediately confronted with a battery of metal detectors and security guards. This adds insult to a long-ago injury, when the county closed the east entrance and installed a vending-machine room in the corridor...." More (Des Moines Register - Editorial 06.08.2006). Comment. We applaud the Register's editors for this excellent editorial, which we urge you to read in full. It expresses some of the points we've been making. See, above entry and embedded links.
If you love the law, you'll want to live in courthouse condo. "Officials hope a proposal to convert the old U.S. Courthouse into apartments will be the salvation for a building that’s been a hard sell since its closing in 1998...The nine-story courthouse, which opened in 1939, is rich in legal and political history. Boss Tom Pendergast pleaded guilty to income tax evasion there, ending his career. Thurgood Marshall, who later became a U.S Supreme Court justice, won a case integrating the city swimming pool in Swope Park. And President Harry S. Truman had his office there for many years...." More (Kansas City Star 06.08.2006). Comment. Why not turn it into an assisted-living facility for retired-status federal judges? The judges could continue working on cases on part-time basis. Their law clerks could continue to assist, but we'd broaden the notion of what constitutes proper "assistance" -- in effect, going back to the good old days, when, e.g., Justice Holmes used his law clerks (they were called "secretaries" then) to assist him with all sorts of personal chores, including reading risque French novels to him, tending to his personal correspondence, maintaining his checkbook, accompanying him on his annual visits to scenes of his Civil War "heroics" (getting shot three times), etc.
New courthouse art: not 'creepy portraits of old judges' but 'modern art.' "Nick Woodfield wasn’t sure what the concoction of colorful bamboo decorating a second-floor wall in the Prince George’s County Courthouse symbolized.
But the attorney said that he found the contemporary artwork refreshing. 'Very often you get these really creepy portraits of old judges that look like they were painted by a first-year art student hanging on the walls,' said Woodfield, of Alexandria...The bamboo display, which was designed by Alonzo Davis and titled 'Judicial Balance,' was among three pieces of artwork unveiled during a ceremony Tuesday at the courthouse...." More (Business Gazette - MD 06.08.2006). Earlier. Judge to artists: we'll display 'appropriate' art in courthouse.
'Stacked judicial deck' in Vegas? "Whether they want to play or do business, all who come to Las Vegas, from Southern California or elsewhere across the nation, expect a fair shake, especially from its courts. Las Vegas is a town, however, where some judges, operating in a new $185-million Clark County courthouse two blocks from casinos, wedding chapels and strip clubs, routinely rule in cases involving friends, former clients and business associates, even in cases touching people to whom they owe money...A common perception among a dozen out-of-state lawyers interviewed about their experiences in Nevada courtrooms is that justice in Las Vegas is just another form of legalized gambling. 'I don't think what goes on in Nevada bears any resemblance to a justice system,' said John C. Kirkland, a Santa Monica attorney. He said he had clients who were victimized in Las Vegas courts. 'It's an old-boy network. It's not a legal system.'" More (L.A. Times 06.08.2006). Comment. This is an excellent, detailed eye-opening investigative piece by the L.A. Times.
Annals of gender diversity in judiciary: woman to judge chardonnay contest. "New Zealand’s only female Master of Wine Jane Skilton will chair the international line up of judges for Gisborne’s 2006 International Chardonnay Challenge...It will be the first time in the challenge’s seven-year history a woman has led the judging panel, says competition director Prue Younger...." More (Gisborne Herald - NZ 06.08.2006). Comment. "Even if [Judge Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they -- a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." - Sen. Roman Hruska (R-Nebraska), defending, in 1970, failed Nixon-nominee, Judge G. Harold Carswell, against criticism that he was "mediocre." As we see it, the trouble with the judging panel is not that it includes Ms. Skilton -- whom we congratulate -- but that it doesn't include, say, a guy from Minnesota whose idea of a good drink for a summer evening is a glass of chilled sangria from, say, the fine folks who operate the Gallo winery. If ordinary, even mediocre, folks deserve "a little representation, a little chance," and the great Senator Hruska's Carswell Doctrine says we do, then next time around the organizers of the Gisborne Challenge might do worse than sending round-trip tickets, hotel reservations, etc., in our direction.
Retired judge admits he used language deemed inappropriate. "A former magistrate who was charged with misconduct after he retired has admitted he used 'racially and ethnically insensitive' language and called female staffers demeaning names while on the job. The Judicial Conduct Board alleged in charges filed in December that Wade J. Brown, who served nearly 30 years as a Sunbury district judge before stepping down in July, used racial epithets and called some female staffers 'dumb blondes' and other names...Though such remarks were never made during official court proceedings, Brown conceded the terms[he admitted using] were 'wholly inappropriate and unacceptable behavior for a member of the judiciary.'" More (Centre Daily Times 06.07.2006).
Harvard Law gushes over Greenhouse. Linda Greenhouse, a Harvard grad, addressed Harvard Law School's Class Day crowd in the great James Barr Ames Courtroom in Austin Hall on the topic, "10 Things I’ve Learned While Covering the Supreme Court." The Harvard Crimson, where Greenhouse worked as a student editor, covered the speech. It quotes Harvard Law School Dean Elena Kagan as gushing [my word] that in her opinion Greenhouse is "the greatest court reporter [and] greatest legal journalist there has ever been and ever will be," adding that "I don’t read the opinions [of the Court] anymore," apparently relying instead on Greenhouse's great report reports of the opinions. More (Harvard Crimson 06.08.2006). Comment. a) I think Dahlia Lithwick, who covers the Court for Slate, is better than Greenhouse. For my taste, Greenhouse, while very good, is a tad too reverential, too deferential in her coverage of the Court. There is a price reporters sometimes pay in order to get close enough to cover people in power. If they don't get close, they don't get off-the-record interviews, don't get scoops, miss out on insiders' gossip, etc. Greenhouse's reporting is always interesting but one ought never abandon one's Holmesian skepticism in reading stuff she writes or stuff any reporter writes. When I read some of her pieces, I ask: Is she in some way serving as a mouthpiece for the Court in this story? Is she in some way also trying to ingratiate herself with the Court? I merely ask, I don't imply.... b) What a shocking thing for Harvard Law's Dean to say -- that she relies on Greenhouse's reports and doesn't read the opinions. Erwin Griswold, depicted right, giving me my diploma back on June 12, 1967 (the 150th anniversary of Harvard Law and of Thoreau's birth) never would have said such a thing.
Court bars Tony Blair's lawyer wife, Cherie, from appearing. "Cherie Blair was told yesterday by a Malaysian court that the country's lawyers were good enough and her services were not required. Mrs Blair had been retained by Fawziah Holdings, a construction conglomerate, to represent it at the final appeal in a corruption case next week...." More (UK Telegraph 06.08.2006).
Yet another attempt to remove federal jurisdiction over a class of cases. "Legislation filed Tuesday by a Utah congressman would remove cases involving state anti-pornography laws from the jurisdiction of all federal courts -- including the U.S. Supreme Court. U.S. Rep. Chris Cannon, R-Utah, pitched his "Pornography Jurisdiction Act" as a way to keep federal courts from hearing challenges to state laws regulating sexually explicit material...." More (Daily Herald 06.07.2006). Comment. I discussed the Republicans' use of other similar proposed jurisdiction-stripping measures in an extended entry in my political opinion blog, Sometimes Left, Always Right, on Monday, 09.27.2004 (scroll down). For reasons I explained there, and as illustrated years earlier by Victorian novelist Anthony Trollope, proponents of such measures typically care little that many of their promises and proposals "never will be done" -- that is, that they never will take the form of law. The point is "promis[ing] it at the hustings" and "demand[ing] it in the House" -- i.e., winning votes back home. Here's the excerpt from Trollope:
"You must have a subject," pleaded Mr. Scruby. "No young Member can do anything without a subject....[A] subject..., if it's well worked, may save you thousands of pounds -- thousands of pounds at future elections."
"It won't save me anything at this one, I take it."
"But it may secure the seat, Mr. Vavasor...."
"But it never will be done."
"What matters that?" and Mr. Scruby almost became eloquent as he explained the nature of a good parliamentary subject. "...Of course it won't be done. If it were done, that would be the end of it, and your bread would be taken out of your mouth. But you can always promise it at the hustings, and can always demand it in the House. I've known men who've walked into...[a] permanent place, on the strength of a...subject...!"
From "The Election for the Chelsea Districts" in Can You Forgive Her? (1864-65), the first of the six Palliser novels by Anthony Trollope.
Incumbents win in GOP judicial primary races for AL Supreme Court. "Fueled by a better than 6-1 spending advantage, Alabama Supreme Court Chief Justice Drayton Nabers and three incumbents on the high court charged to apparent landslides Tuesday in a Republican primary billed as a battle for the party's soul. The incomplete and unofficial statewide results represent a resounding defeat for Justice Tom Parker, who challenged Nabers for the top spot and helped recruit Christian conservatives to oppose Justices Champ Lyons, Lyn Stuart and Tom Woodall...." More (AL.Com 06.07.2006). Comment. Associate Justice Parker, who was elected two years ago and has four years left on his term, challenged a colleague, the Chief Justice, who was running for another term as chief. Parker is a protege of ousted Chief Justice Roy Moore, the so-called "Ten Commandments Judge," and a disciple of Justice Clarence Thomas, who attended his private swearing-in in January 2005. Will the Chief and Parker now work together in ye olde "colleagial" way? "Parker said he would support the Republican judicial ticket in the fall and already had begun calling fellow justices in an attempt to heal any rifts left by the campaign. Courts thrive on collegiality, and Parker said he suspects he and the other justices will take some time to discuss their working relationship post-primary. 'We're all professionals who have the same goal,' said Parker. 'We will work together to work through our differences.'" More (Contra Coastal Times 06.07.2006). Roy Moore, btw, lost in his primary challenge to incumbent Governor Bob Riley. More (Washington Post 06.07.2006). Earlier. Moore's disciples - Fairness of bar poll on qualifications of judicial candidates questioned - Bar poll results announced in heated Alabama Supreme Court races - Battle for chief justiceship in Alabama: Is challenging justice unproductive? - Panel rejects complaint against controversial AL Justice over column - Alabama justice defends low productivity - A dysfunctional 'court family' - Another Alabama Supreme Court Justice is 'at it.'
Courts run out of stationery. "Zimbabwe's courts have for the past six months failed to print court records and judgments because the government does not have the cash to buy printer cartridges in yet another example of how things have collapsed in the country...." More (ReliefWeb 06.07.2006).
Free cars for judges!!! "The State Cabinet on Monday decided to provide a slew of facilities to the State Judicial Service members in keeping with the Supreme Court directive...District and sessions judges, senior additional district and sessions judges and chief judicial magistrates each will be provided a government car...." More (Hindustan Times 06.06.2006). Comment. And, presumably because "it's not that easy being a judge" (our words), judges will get "petrol," "[a]n entertainment allowance," water and power reimbursement, housing benefits, "free subscription to a national and a state-level daily newspaper and a magazine focusing on social and economic issues," "uniform allowance" (ye olde robe?), use of "medical facilities,"a leave travel allowance...once in four years for any place in India from the place of his/her posting," overtime in special situations, "official residence" or housing allowance/rent, "telephone with STD facility [hmm] to each court," "domestic help allowance," etc. The good news for judges in the U.S. in all of this is that as benefits and perks for Indian judges increase, the odds that governments here will find it economically feasible to "outsource" judicial jobs to our common law brothers and sisters in India.
Widows of murdered judges demand justice. "The Justice Ministry will commemorate the seventh anniversary of the murder of four judges in Sidon, despite the judiciary's inability to capture the perpetrators who remain at large...Today, after seven years, no progress has been made in the case, although officials insist that the available information shows that the perpetrators are hiding in Ain al-Hilweh, the Palestinian refugee camp outside Sidon. Bahija, widow of Hassan Othman, [speaking on behalf of the other widows,] blames the authorities for the neglect...." More (Lebanon Daily Star 06.06.2006).
Do judicial ambitions of lawyers on judiciary committee taint process? a) "If former state Chief Justice William J. Sullivan or other justices testify at hearings of the legislature's Judiciary Committee on the controversy over Sullivan's secret delay in releasing a Supreme Court decision, more than half the committee members looking across the table at the witnesses will be lawyers. Can the committee properly oversee the judiciary when so many of its members make their livings by pleading cases before that branch of government? And when the committee considers the appointment and reappointment of judges, can its lawyer members put the public's interest ahead of their personal interests or their profession's?" More (Journal Inquirer - CT 06.05.2006). b) "Some critics of Connecticut lawyers have suggested that the state constitution prohibits them from serving in the legislature [because they are "officers" of the judiciary and the CT Constitution bars a legislator from "appointive position or office" in the judicial or executive branch during the term for which the legislator was elected]. But the state Appellate Court has rejected that argument, and the history of the constitutional language at issue seems inconsistent with it...." More (Journal Inquirer - CT 06.05.2006). c) "Rep. Michael P. Lawlor, D-East Haven, a co-chairman of the Judiciary Committee, argues vigorously that the possibility that members may go on to judgeships doesn't blunt the committee's oversight of the judiciary. 'The process of becoming a judge has nothing to do with the judicial branch,' he says. 'If you want to become a judge, you'd be better off sucking up to the governor.'" More (Journal Inquirer - CT 06.05.2006).
Lindbergh kidnap case courthouse restored to earlier 'splendor.' "In many ways, it was the house that Lindbergh built. Though the historic courthouse on Main Street was built in 1793, it was the second-floor courtroom where the Lindbergh baby kidnapping case was tried in 1935 that put Flemington and Hunterdon County on the international map. That courtroom -- which packed hundreds of people daily including Jack Dempsey, Jack Benny and Ginger Rogers during the 32-day trial -- and the courthouse building was rededicated Sunday afternoon at a ceremony attended by about 40 people, including residents, freeholders and people involved in the $4 million interior renovation...." More (Bridgewater Courier-News 06.05.2006).
Judicial junk-science junkets. Eric Schaeffer, writing in the Washington Post, opines, in reference to recent revelations about corporate-funded federal judicial junkets to Yellowstone National Park, etc., to attend slanted seminars on topics that arise in litigation: "Voters can replace elected officials who seem too close to special interest groups. But judges are appointed for life, and allowing insider access threatens the integrity of the one branch of government that should stand above politics. Court cases must be won by argument, not by influence, and that means putting a stop to judicial junkets that give one side of the debate an unfair advantage." More (Washington Post 06.04.2006). Comment. Life tenure for members of the U.S. Supreme Court is fine with me, even though the appointment process is terribly politicized. But I wouldn't want life tenure here in MN. One of the beauties of our system of judicial elections in MN -- which, for the most part, historically has had an excellent judiciary -- is that each of our judges knows that once every six years any attorney is free to run against him or her and raise an issue like this. In practice, most judges do not face opposition. But the possibility of opposition and removal is always there. It has a chastening effect and it supports the principle that although judges as judges ought to be independent of improper influence, they also ought to be accountable to the people, whose system it is they serve. For more on my views on this, see my 2000 essay, BurtLaw on Judicial Independence and Accountability. Relevant related postings on judicial retreats and junkets. a) No belt-tightening for New Orleans judge traveling on public's money. b) Revelations about those junkets for federal judges. c) Did MN judges use public funds for lessons on how to get re-elected? d) Judges huddle in high style on taxpayers' money.
Today at the courthouse: snipers, choppers, bomb-sniffing dogs, etc. "Dozens of machine-gun-toting officers, clad in partial body armour, surrounded the courthouse [in Brampton] yesterday as suspects in an alleged terror plot were brought before a justice of the peace. Officers asked for identification from people wanting to get into the parking lot and several police officers were posted on roads leading up to the courthouse. Outside the building, bomb dogs sniffed purses and bags as spectators passed through the first of several security checkpoints. Police helicopters flew overhead, while snipers stationed on nearby rooftops monitored the situation from above. Inside, people were asked to remove their shoes...." More (Toronto Sun 06.04.2006). Comment. And yet the jury will be asked to presume each of the multiple defendants to be innocent. More (Toronto Star 06.04.2006) (Columnist Thomas Walkom: "Suppose, just suppose, that one or more of the 17 charged yesterday with terrorism is innocent. This is not the common assumption. I suspect most Canadians assume that Ontario was in great danger from terrorists, that police nipped this danger in the bud and that all of the 12 adults and five young people they arrested are guilty....").
Courthouse oasis is closing. "For 25 years, Debbie Brown's been dispensing coffee and not a little comfort out of her courthouse cafe. As constant as indictments and intrigues at the Cumberland County Courthouse, Brown has greeted early morning customers and afternoon arrivals inside the first-floor cafe....But Brown, 53, said this week she'll soon be packing up her constant table-top companions -- a copy of the Bible and the most recent edition of The National Enquirer -- and cutting off the television that's often tuned to the oddly appropriate courtroom drama...." Brown is quoted saying: "A lot of times when people would come to court, they would come to my husband [who died in 2002] and ask him to pray with them. Some of those customers and employees that my husband left behind have continued to come to me and ask me to pray for them." More (Press of Atlantic City 06.01.2006). Comment. Law school professors and judges like to think that years later their students and law clerks will think of them as heroes of a sort. It sometimes happens. Who do I think of when I think of my days at Harvard Law School? Lots of people, including professors. I think most warmly of folks like "Little Wash" (was there anyone like him?), a short black cigar-smoking, tale-telling janitor at Harvard Law, who used to sit and talk with me, sometimes even buy me a milkshake, on the occasions when he'd run into me in the grille on the second floor of Harkness Commons, to which I regularly went after a night of studying. Wash was the father of "Big Wash," Ned Washington, who was an All-American basketball player at a college in Boston who later played pro ball in the old American Basketball Association. At Christmastime, 1966, when I told him I wasn't going to be able to go home for Christmas, Wash invited me over to his house to spend it with his family. I couldn't take him up on it, but I've never forgotten the invitation or his daily kindness. And I've never forgotten the kindness of "Kelly," the friendly, voluble burger-flipper (he called them "Gainesburgers") at the grille, who, like Wash, was a far more significant figure in the daily lives of many of the students than were the star professors, many (but not all) of whom not only were egomaniacs but just plain ornery, nasty men. Further reading. a) BurtLaw's Secular Sermons for Judges & Lawyers; b) BurtLaw's Harvard Law School; c) Your tax dollars at work: $3.5 million courthouse cafeteria. d) Did hotdog stand create 'circus-like atmosphere in the courts'? e) Chief judge grills burgers for construction crew f) Vendor to sell hot dogs outside Iowa courthouse.
Courthouse steams. "Judge Jeff Thompson entered his third-floor courtroom Tuesday without a black robe. There was a hum of portable fans and people waved papers and folders at their sweating faces. A small air conditioner in the corner struggled to overcome the stuffy air. A computerized thermostat apparently failed to turn on the air conditioning as temperatures soared into the 90s over Memorial Day weekend. Mike Krage, Winona County maintenance superintendent, said he ordered a $15,000 computerized controller to fix the problem, and workers will begin installing it today...." More (Winona Daily News 06.01.2006). Comment. They could'a filmed the sweaty courtroom scenes in To Kill a Mockingbird there. Back when I was a kid, in the romantic rockin' 1950's, courthouses weren't air-conditioned. The judicial system didn't collapse, and no one felt deprived. When I began working at the MN Supreme Court in 1970, the judges' chambers, the court offices, the library, the courtroom, and conference room weren't air-conditioned. Somehow we got along o.k. And some of us who are fortunate enough to have central air-conditioning at home get along well enough with a $50 manually-controlled thermostat.
Judge's assistant at center of bitter judicial races. "For the first time in years [in Miami-Dade County Courts], three intertwined judicial races are actually prompting controversy...The fuss seems to begin and end with Juan D'Arce, a judicial assistant who also runs a consulting firm that works on judicial campaigns. Adding to the plot: D'Arce is currently under investigation by the state attorney's office for allegedly politicking on government time and using heavy handed tactics. In one race, D'Arce's boss -- County Judge Ivan Hernandez -- has drawn opposition from a lawyer who accuses the judge of poor judgment for failing to fire D'Arce as a judicial assistant. In the other two races, judges claim that D'Arce, as a consultant, recruited people to run against them because they told his boss about allegations that D'Arce made an anti-Semitic comment...." More (Miami Herald 05.31.2006). Earlier. Judge's aide's courthouse computer is seized in investigation.
Essay: The Harvard Law Review -- Glimpses of Its History as Seen by an Aficionado. Although I wasn't among the 25 or so selected by grades out of my class of over 500 to join the Harvard Law Review Association, I've always been an aficionado not just of The Harvard Law Review but of student-edited law reviews in general. During the 28+ years I was an aide to the Minnesota Supreme Court, I regularly had first dibs on the most recent issues of all the law reviews when they arrived at the Minnesota State Law Library. It is the one perk I miss the most. But, thanks to the WWW, I still regularly review lists of tables of content of recent issues of all the law reviews. One of the things a judge -- and anyone who advises judges -- should do is try to be ever aware of one's own current biases and predispositions. The foolish judge is he who sanctimoniously denies, to himself and others, that he has biases and predispositions. But it is not enough to have some awareness of oneself and one's biases, etc. One also should regularly subject one's views -- one's truths -- to other people's differing views and truths. One of the ways for a judge, puisne judge, judicial aide, judicial wannabe, or lawyer to do just that is to keep a running list of articles, as they come out, that seem of interest and then occasionally find time to read a few of them. The above link is to a 1987 HLR centennial year essay by the man who was Dean of the law school when I was there, Erwin N. Griswold (1904-1994), who later served as Solicitor General under both Presidents Johnson and Nixon.
D. H. Lawrence & the law. In 1922 Judge John Ford wrote D. H. Lawrence complaining about Lawrence's Women in Love, which Ford's daughter had checked out of the library. Lawrence responded: "Let Judge Ford confine his judgements to court of law, and not try to perch in seats that are too high for him. Women in Love was not written for the Ford family any more than apples are apples for their sake. Father and mother and daughter should all leave the tree of knowledge alone. The judge won't succeed in chopping it down....Many better men have tried and failed."
Our Motto - "Ridentem dicere verum quid vetat" (Horace). Loose translation: Does anything prevent telling the truth with a smile?
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