The Daily Judge
© 2008 Burton Randall Hanson
      Archives - 03.01.2008 - 03.15.2008
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great legal importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."

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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 (archived here), 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.

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

 The campaign to deprive MN voters of a role in judicial selection. I recently posted a detailed critical essay on this topic that has received some attention, and I link to it here for the convenience of our MN readers: Strib. urges longer terms for judges, no role for voters in their selection. There you will also find links to some of my other earlier relevant postings. Among most-recent postings, see, MN's C.J. will skip election, retire early ('Judicial Keep Away'?); David again takes on Goliath over speech regulations; Some GOPers oppose Quie plan to deprive voters of right to select judges;.SCOMN #5, SCOMO #47 -- so let's adopt the Missouri Plan?

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

 SCOTUS on brief writing. Tony Mauro, Justices give 'how-to' on making case before high court (Legal Times via Daily Report 03.14.2008). Comment. Pretty familiar stuff, but worth a read if you're not acquainted with the genre.

 Dept. of 'Mistakes May Have Been Made.' "The matter has been listed before me today in order that I can publish to the parties the reasons for judgment that I intended to have published on March 3. The judgment handed down on that day was an early draft of the judgment and had been altered by me the week before. It is regrettable that the earlier draft was published and received some media attention. It contained criticisms of the conduct of Ms Sexton that I had moderated in my final judgment. It is highly unfortunate that an administrative error occurring in my chambers may have resulted in additional distress to Ms Sexton." -- From a statement to the press by Judge Roderick Howie of the NSW Supreme Court explaining an administrative error that resulted in a mistaken release of a draft judgment holding that Elizabeth Sexton and the Sydney Morning Herald were not guilty of contempt of court in writing and publishing an article during trial of another case. More (The Australian 03.14.2008).

 Old Bailey's only female judge retires. "The only woman judge at the Old Bailey[,72-year-old Judge Ann Goddard,] has retired after presiding in the court for 15 years...She was also the only judge who was attacked by a defendant. In 2001 a mentally ill man, Paul Horgan, punched her during a preliminary hearing. The judge, who suffered a cut to the head and a black eye, returned to work two days after the attack...." More (BBC News 03.14.2008). Comment. So let me get this straight, the two main things we ought to remember about Judge Goddard's service as judge are a) she was the only woman judge at the Old Bailey and b) she was the only judge attacked in court?

 Judges must strive to attain perfection? "The Chief Justice of Nigeria (CJN), Justice Idris Legbo Kutigi, has charged Judges and Kadis in the country to shun acts that could make a mockery of the judiciary and thereby bring the judiciary into disrepute. Addressing the opening ceremony of a Refresher Course organized by the National Judicial Institute (NJI) for Judges and Kadis in Abuja yesterday, Kutigi said judges must strive to attain perfection in spite of adversities that may appear in the course of their duties...." More (Daily Trust via All Africa - Nigeria 03.11.2008). Comment. Hey, I don't care if the judge who decides my case is deeply flawed and not the least bit convinced of the perfectability of human beings, so long as he intelligently and fairly and correctly decides my case.

 Indiana Jones VI: The Search for the Lost Courthouse. "About the time of Maryland's 300th anniversary in 1934, someone launched a search for the original Charles County courthouse, which stood from 1674 to 1727, but failed to find it. On the county's 300th anniversary 24 years later, someone tried again, with no better results. Finally, as the county prepares to celebrate its 350th birthday this summer, a group of surveyors, archaeologists and genealogists thinks it has been found -- almost...." More (Washington Post 03.13.2008).

 Annals of judicial appointments commissions -- herein of 'blinkering.' "Scotland's longest-serving judge has attacked the way his fellow judges and sheriffs are appointed, accusing the body in charge of failing to do enough to weed out bad candidates...Lord Osborne said: '[T]he board has set its face against making inquiries about how the individual candidate may have performed his professional or judicial responsibilities before that appointment arises...You are blinkering yourself to sources of information I would have thought are highly valuable...' Lord Osborne suggested inferior candidates could get the job simply because they were better at interviews...." More (The Scotsman 03.13.2008). Comment. The so-called merit commission approach to judicial selection sounds good to a lot of people in theory, but then you see the results. See,.SCOMN #5, SCOMO #47 -- so let's adopt the Missouri Plan?

 Got ATM card, get outta jail? Gary Hickton, 42, was standing before Judge Paul Downes in Norwich Crown Court to be sentenced for knocking down a 72-year-old woman who was "in his way." Judge Paul Downes, after learning that Hickton had received "£5,400 in redundancy" (whatever that means), told Hickton he was willing to bail him for an hour to go get cash from an ATM (they're called "cashpoints" in the UK) to compensate the victim. Judge Downes said, "I don't want anybody to think I am bargaining with you but if you can come up with compensation, your sentence will be substantially reduced. I am thinking of 750 [pounds]." When Hickton returned with £750 for the victim, Downes told him he was sentencing him to nine months, half what he otherwise would have imposed. More (UK Telegraph 03.13.2008). Comment. Sounds like something not out of the UK, the stately birthplace of the common law, but out of Judge Roy Bean's Saloon/Courtroom in Langtry, TX. According to this account (Wikipedia), "Langtry did not have a jail, so all cases were settled by fines. Bean refused to send the state any part of the fines, but instead kept all of the money. In most cases, the fines were made for the exact amount in the accused's pockets [or the amount the fellow could withdraw from the ATM machine Ol' Roy kept behind the bar]."

 Stripper says judge owes her money. "A New York City stripper says a [FLA] appeals judge wanted to marry her. Christy Yamanaka says she had sex with 2nd District Court of Appeal Judge Thomas E. Stringer Sr. three times during their 15-year friendship. She paid him rent in a home he once owned in Hawaii, and now lives in a New York City apartment leased under his name. She says the married father of five owes her hundreds of thousands of dollars that he helped hide from creditors...." He apparently denies any wrongdoing but feels it would be inappropriate to comment publicly on the matter. More (St. Petersburg Times - FLA 03.13.2008).

 SCONM removes judge for ticket-fixing. "The state Supreme Court has removed Bernalillo County [NM] Metropolitan Court Judge J. Wayne Griego from the bench because of a ticket-fixing scandal. The Judicial Standards Commission had recommended a more lenient punishment: suspension without pay for 90 days and a reprimand...." More (Alomogordo News 03.13.2008).

 MN's C.J. will skip election, retire early ('Judicial Keep Away'?). "Chief Justice Russell Anderson of the Minnesota Supreme Court today notified Gov. Tim Pawlenty that he will retire June 1. Initially appointed to the Supreme Court in 1998, he has been chief justice since 2006. He previously served as a district court judge...." More (St. Paul Pioneer-Press 03.11.2008). Comments. a) Don't say we didn't forecast it when he was appointed. See, Is MN's new Chief a caretaker chief? ("Is the appointment in the nature of a caretaker appointment, with the idea being that Anderson will retire during Pawlenty's second term, to be replaced by -- need we provide a name?"). See, also, Pawlenty picks -- guess who -- an Anderson; Who will/should the governor appoint to fill MN's chief justice vacancy? b) Minn. Const. Art. VI, Sec. 8 provides: "Whenever there is a vacancy in the office of judge the governor shall appoint in the manner provided by law a qualified person to fill the vacancy until a successor is elected and qualified. The successor shall be elected for a six year term at the next general election occurring more than one year after the appointment." The last time the voters had a chance to weigh in on the chief justiceship was in 2000. If C.J. Blatz had retired more than a year before the 2006 general election or if she had simply served out her term without running again, the voters would have had a chance to elect her successor in 2006. Instead, she retired in early 2006, meaning that the election was put off until 2008. Now, two years later, we have yet another apparently carefully-timed retirement, this time by C.J. Anderson, meaning that Gov. Pawlenty will again appoint someone to fill the spot and it'll be two more years before any attorney may file for the position. Stated differently, it'll be ten years instead of six without the possibility of voter participation. Do you think that's what the drafters of our populist state constitution had in mind? A cynic might call it a judicial example of either "keep away," the popular children's playground game, or "freezing the ball," the "stalling" or "killing the clock" basketball tactic designed to keep the ball from one's opponent (the use of which led to the adoption of the "time clock" by the NBA and the NCAA, requiring the offense to shoot within so many seconds of gaining possession of the ball.) Neither C.J. Blatz nor C.J. Anderson has done anything illegal, and perhaps no one else is troubled by this sequence of events. Although I'm not surprised, I am troubled. Indeed, I can't help thinking that when some members of the judicial establishment prate about judicial independence, what they really mean is a) they don't like the populist state constitution they've sworn to uphold and b) judges, in their view, won't be independent until they're independent from any possibility of real, live electoral opposition. Further reading. See, my answers to questions by the Minnesota Lawyer when I ran for the position of C.J. in 2000, and my 2000 campaign position paper titled Judicial Independence and Accountability. For background on "keepaway" and similar games, see, 'Keep Away,' 'freezing the ball,' 'stalling,' and other forms of 'gaming.' Update. Mark Cohen, editor of Minnesota Lawyer, runs an interesting blog titled Minnesota Lawyer Blog. In Chiefly speaking, posted there on 03.12.2008, he writes:

I thought we did pretty well on this blog to give you a heads up that Chief Justice Russell Anderson might step down from the high court three days before his retirement was officially announced. But then I got an e-mail from Burton Randall Hanson over at the Daily Judge blog. Hanson sent me a link to a blog post he made predicting the 2008 retirement in December 2005, right after Anderson's appointment as chief was announced...Hanson definitely deserves the early bird award here.

 'Keep Away,' 'freezing the ball,' 'stalling,' and other forms of 'gaming.' a) "Keep Away, also called Monkey in the Middle, Piggy in the Middle or Pickle in a Dish, is a children's game played primarily in North America and the United Kingdom. Two or more players must pass a ball to one another, while a player in the middle attempts to intercept it. The game could be considered a reverse form of dodgeball, because instead of trying to hit people in the middle with the ball, players attempt to keep the ball away from them...." Keep Away (Wikipedia). b) "Many say that [the] invention [of the time clock] saved the NBA, [which] had problems attracting fans (and television coverage) before its inception [in the mid-1950's]. This was largely due to the stalling tactics used by teams once they were leading in a game (killing the clock). Without the shot clock, teams could pass the ball nearly endlessly without penalty. If one team chose to stall, the other team (especially if behind) would often commit fouls to get the ball back following the free throw. Very low-scoring games with many fouls were common, boring fans. The most extreme case occurred on November 22, 1950, when the Fort Wayne Pistons defeated the Minneapolis Lakers by a record-low score of 19-18. A few weeks later, the Rochester Royals and Indianapolis Olympians played a five-overtime game with only one shot in each overtime." Shot clock (Wikipedia); Four corners offense (Wikipedia); Stalling/gaming (Wikipedia). c) Neither "freezing the ball" during a basketball game nor "keep away," both human games, should be confused with the canine game of keep away (below), which involves a dog trying to hold an object, typically a stick or bone or stuffed animal, in her mouth while others dogs and/or people chase the dog and try take the object away from her.; the canine game involves no passing of the object. d) Sometimes people play a form of keep away without knowing they're playing it and/or without potential other players knowing they're playing keep away. See, MN's C.J. will skip election, retire early ('Judicial Keep Away'?).

 SCOMN #5, SCOMO #47 -- so let's adopt the Missouri Plan? "A new study counted up the number of times the decisions of state high courts were followed in other states -- in other words, how often one state's decision played a direct role in shaping a decision elsewhere. That sort of citation analysis is a common measure of influence, and there is a cottage industry of rankings for judges, law professors, law reviews, law faculties and the like. According to the study, published in December in the University of California, Davis, Law Review, the California Supreme Court won by a landslide...." Adam Liptak, Around the U.S., High Courts Follow California's Lead (NYT 03.11.2008). A graphic accompanying the article shows SCOMN in the #5 position (i.e., 5th most influential), with SCOMO in the #47 position. Comment. So I guess we ought to adopt the "Missouri Plan," huh? Further reading. Strib. urges longer terms for judges, no role for voters in their selection ("Minnesota, in fact, has one of the best trial court systems in the country, a generally outstanding court of appeals, and a historically better-than-average supreme court. We're clearly better, in my opinion, than Missouri, whose 'plan' the bar leaders and politicians and Strib editors -- who have long been hostile to voter participation in judicial selection -- now want us to emulate. This is doubly ironic in that there is currently much dissatisfaction with the Missouri Plan in Missouri, with many thoughtful people there suggesting it ought to be abandoned and replaced with a plan not unlike ours.").

 New rules for complaints against federal judges. "The Judicial Conference on Tuesday adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct...." More (Legal Times via Law.Com 03.12.2008). Link to PDF of revised code. "Final orders on complaints about judges will be posted on appeals court Web sites and, in most cases, judges will be named if they have been sanctioned...." More (AP.Google 03.12.2008).

 Annals of budgetary transparency. "All state spending of $100 or higher would have to be made public on a searchable Internet database under a bill that passed the state Assembly. The information would include everything from salaries and fringe benefits paid to state workers and multimillion dollar contracts paid by the state. The bill would require the information to be organized by state agency, expense category, amount, and who received the money." More (Chippewa Herald - WI 03.11.2008). A similar bill has been introduced in the MN House by Rep. Laura Brod (R-New Prague). "Last session, Minnesota lawmakers approved the 'Google Government' law, which allows taxpayers to use the Internet to view how the Minnesota Department of Administration is spending tax dollars relating to state contracts and grants. Brod's bill would expand this access to the Departments of Finance and Revenue. It would also require the agencies to include information on each state appropriation, broken down by program or activity, as well as broken down by object of expenditure -- such as salaries or travel. Information on each type of state tax expenditure would also be reported...." More (MN House - Press Release 02.08.2008). Comment. I first proposed this with respect to the judiciary in my campaign in 2000, and I've proposed refined versions of it a number of times since then. The original proposal may be found in a number of places in the archives of my campaign website, which are now online, including in the position paper titled Judicial Independence and Accountability.

 Judge of scandal-ridden court sues to block release of report. "The presiding judge of Federal Way's scandal-ridden Municipal Court has sued the city attorney to block her from releasing a report to The News Tribune. The report investigates employee allegations that the court is a hostile workplace...." More (News-Tribune - WA 03.12.2008). Comment. Let the sun shine in.

 Courthouse tales: elevator operators lifted mood as they lifted people. "In those days, the courthouse still used manual elevators requiring a bit more expertise than today's push-button models...[Flossie] Tyson and her fellow elevator operators did more than just move people from point A to point B. They acted as greeters, locator services, news outlets and even as amateur therapists. They were the first people courthouse visitors and employees met when they came in and the last they saw before leaving...Reporters appreciated [Tyson's] seemingly limitless knowledge of courthouse doings and tips on stories about county departments...Tyson was an expert on the crank wheel that controlled the speed and direction of the circa 1930 elevator...She could go straight to the required level and stop the car precisely even with the floor on the first try -- no mean feat...." More (Beaumont Enterprise - TX 03.10.2008). Comment. Good piece of features reporting, worth reading in its entirety. It's not all that clear that going the cheap, seemingly-efficient route -- as in automating and outsourcing, etc. -- necessarily is better in non-economic ways or even better policy using strict economic cost-benefit analysis. Further reading. See, How about a courthouse surrounded by and filled with flowers? Might Mr. Stephens' flowers lead to better government? Airports, subways, museums, courthouses ("It's perhaps worth asking also whether a few hundred dollars spent on planting & tending flowers outside a courthouse might be more cost-effective in promoting courthouse civility & safety than a few hundred thousand dollars in increased spending on building up more & more layers of security.") Another soul-less public building?

 The 'two-faced' judge. "[T]here is only one face to watch in the trial of three detectives charged in Mr. Bell's shooting death on Nov. 25, 2006, outside an exotic dance club in Jamaica, Queens. It is being heard without a jury, at the detectives' request, in State Supreme Court by Justice Arthur J. Cooperman...[T]he 74-year-old judge has seemed to wear one of two facial expressions during most of the past two weeks of testimony. Face No. 1, seen most often, is best described as attentive but unfeeling, even cold, like a psychiatrist in an old movie listening to a patient on the couch...The second face generally follows the ring of somebody's cellphone in the gallery or an interruption in the case because of a technical difficulty, like a crashing computer...." More (NYT 03.10.2008).

 The course of 'Justice' doesn't run smooth or fast in Philippines. "A Manila court today acquitted the flamboyant widow of late Philippine dictator Ferdinand Marcos of 32 counts of illegally transferring wealth abroad during her husband's 20 year rule. The decision by Judge Silvino Pampilo Jr of the Manila Regional Trial Court came after a 17-year trial in the case involving millions of dollars stashed in Swiss bank accounts...Of the 901 cases filed against Marcos after her husband's downfall, 10 criminal cases remain with the anti-graft court, her lawyer Robert Sison said...." More (The Age 03.10.2008).

 Proposal to make judges independent in Yemen. "Independence of the Judiciary System has been raised as one of the issues that must be dealt with in order to promote democracy, human rights and investment in Yemen. Driven by a Yemeni human rights organization known as HOOD, a project proposing a draft law for the judicial authority is underway with funding from the Middle East Partnership Initiative...." More (Yemen Times 03.10.2008).

 Jetsetting judge and wife spent $2,000 a day, $130,000 in little over a year. "Queensland's top judge[, Chief Justice Paul de Jersey,] and his wife...have clocked up $130,000 on overseas travel in just over a year, enjoying first class flights, chauffeured limousines, European rail tours and exclusive Roman hotels that once housed 17th-century Italian princes. In their busiest period abroad yet, slugged taxpayers almost $2000 a day while visiting courts and attending conferences in Italy, Tonga, England, Germany, India, Luxembourg, China and New Zealand...Justice de Jersey yesterday defended the $131,983 bill, insisting the travel was for important work to ensure the state's judicial system 'developed and matured.'" More (Courier Mail 03.09.2008). Some earlier 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) Judicial 'Educational' Junkets. d) Judges huddle in high style on taxpayers' money. e) Judicial junk-science junkets. f) The 'Wacky Courthouse' playground as alternative judicial retreat. g) Will Senator's response to junket exposé affect judicial junkets? h) Three Senators want to end judicial junkets. i) Judicial privileges. j) Some judges are more judicious in spending. k) Judges of troubled court head for the beach for 'education.' l) The annual convention of the state chief justices. m) Did MN judges use public funds for lessons on how to get re-elected? n) Annals of judicial junkets -- blowing $16,000, then quitting. o) Latest on 'judicial junkets.'

 Ex-supreme court justice, law clerk are focus of Mann Act investigation. "A retired State Supreme Court justice resigned his post as a hearing officer as federal agents investigate his alleged role in taking a local massage parlor worker across state lines for purposes of prostitution. FBI and U.S. Border Patrol agents are investigating allegations that retired Judge Ronald H. Tills, his former law clerk and a retired police captain took the female massage parlor employee in a motor home to a gathering of members of a nationwide group called the Royal Order of Jesters...." More (Buffalo News 03.09.2008). Further readings on Mann ('White Slave') Act. Should we send all judges and legislators to jail? (In re Frank Lloyd Wright's experience being wrongly arrested in MN and spending night in jail for allegedly violating Mann Act); More on the Mann Act (about the history of the Act, overly-broad interpretation of it, and abusive use of it by federal prosecutors).

 Some GOPers oppose Quie plan to deprive voters of right to select judges. "Minnesotans ought to elect their judges -- from district court on up to state Supreme Court -- Beltrami County Republicans decreed Saturday...Other[ resolutions passed] include removing 'incumbent' from a judge's name on the ballot, having Jan. 1 in odd years as the starting date for new judicial seats to ensure an election for that new seat, filling judicial vacancies with people who serve only until the next election and then declaring the seat open, and to establish a Minnesota Rules of Judicial Ethics by statute...." More (Bemidji Pioneer 03.09.2008). Comment. Looks like the MN judicial establishment might have opened a hornet's nest in its well-financed plan to deprive voters of their historic populist role in selection of judges under the state constitution. There's a very real possibility that, from the judicial establishment's perspective, its basically anti-democratic, quasi-aristocratic attempt to give job security to state supreme court justices and other judges will backfire in a big way, especially given rumors that there are a number of lawyers who are poised to run against "incumbent" justices and judges in this year's round of elections if the proposed amendment is on the ballot. Further reading. I recently posted a detailed critical essay on this topic that has received  some attention, and I link to it here for the convenience of our MN readers: Strib. urges longer terms for judges, no role for voters in their selection. There you will also find links to some of my other earlier relevant postings.

 The latest on the court-secrecy mess in Connecticut. "It's not that Connecticut's judges don't understand the necessity for openness in a free and democratic society. It's just that they want to dispense freedom of information to the public on their own, voluntary terms. It's a trust-us-and-we'll-behave-properly strategy, one the public should not accept given the Judicial Branch's past transgressions. The judges' accountability to the state's Freedom of Information Act should be defined clearly in state statutes, rather than depending upon the good will of individual judges at particular moments in state history...In all this furor, both the judges and the legislature need to recognize once and for all that the courts don't belong to them. The courts belong to the people. And the people's confidence in the courts requires openness and accountability." From a right-on op/ed piece titled The Courts Belong to the People by Morgan McGinley, a former editorial page editor for The Day, now retired. (The Day 03.09.2008). Earlier. We've posted a number of entries on the mess in CT that is background to this op/ed piece: Supreme court justice denies court is dysfunctional; Former chief justice is quizzed by lawmakers over delaying release of decision; Ex chief justice apologizes for judicial drama; The SCOCONN C.J. controversy and its aftermath - a trio of editorials; Review council finds chief justice guilty of ethics violations, suspends him; Latest on supreme court scandal; Legislators subpoena former chief justice;  Embattled ex-chief justice defends actions before disciplinary board; Hearings involving ex-chief offer peeks behind red velour curtains; More fallout in CT court scandal; The 'Judges Protection Council'?; CT Supreme Court mess: lawmakers to ask justices to testify; Latest on uproar over C.J.'s deferring opinion's release; and Outgoing C.J. admits holding up decision to help colleague succeed him. Two task forces or commissions were created as a result of the scandal, one established by the acting chief, one by the governor, giving one some idea of the turf war among the three branches of government that's been taking place. Here are links to postings about the acting chief's task force as well as a link to the task force's report: Acting chief justice urges cameras in court, other reforms; 38 new varieties of judicial open-ness?; Public Access Task Force Report (in irritating PDF format). Here's a link to a posting about the governor's task force: Seeking judicial control. On the subject of task forces in general, see, Those 'blue-ribbon' commissions and task forces. BTW, we argued for greater real (as opposed to faux) openness of courts in an essay/position paper we wrote in 2000 in connection with our general election campaign for state chief justice in MN. See, 2000 Position Paper on Judicial Independence and Accountability. And see, a flurry of recent postings on the subject of judicial accountability and transparency.

 Fighting JWI (judging while under influence) with aftenoon BAC breath tests. "Li Bin, a barrel-chested retiree on special assignment for this city's Communist Party boss, strode down an empty hallway of the Xinyang Middle Court in search of bureaucrats. He rattled locked doorknobs and barged into offices without knocking. A court officer retreated in red-faced terror. The booze squad had arrived [with BAC breath testers]...[Mr. Li] said violators were quick with excuses: a good friend in town; a special family occasion; even a shot or two on doctor's orders. 'I say, 'We don't care,'' Mr. Li said...At the Middle Court, several offices were locked and empty, leaving open the possibility that their inhabitants were off drinking and not planning to return...." More (NYT 03.08.2008). Comments. a) JWI is sometimes referred to on these pages as PWI (presiding while under the influence). It should be compared and contrasted with NWP (napping while presiding), LWSJ (leaking while secretly judging), MWP (masturbating while presiding)., DOWD (Dictating Opinions While Driving), TWD (Text-messaging While Driving). For my expostulations on JWI and PWI (as well as on golfing under the influence and performing surgery under the influence), see Hi ho, hi ho,/ it's off to court I go,/ to judge, to judge,/ tra la, tra la.... b) A wise chief judge of a multi-member metropolitan trial court, in an effort to prevent JWI/PWI, established a prophylactic rule that no judge could return to work in the afternoon if he had had a drink at lunch. He later imposed such a rule when he was chief justice of that state's supreme court. While we wouldn't advocate removal of a judge who violated the rule or termination of a court employee for working while just barely under the influence of one teeny-weeny drink, we believe the rule is a good one, and that, rule or no rule, a wise judge or judicial employee will refrain from drinking at lunch on a work day. Certainly a judge should not hold a juror to a no-drinking-during-trial standard, as some do, unless the judge holds himself to such a standard. c) Ought we adopt CCC (the Chinese Commie Approach) of random breath testing of judges, law clerks, secretaries, etc.? In Board of Education v. Earls, 536 U.S. 822 (2002), our Supreme Court confronted the propriety under the Fourth Amendment of mandatory urine testing, i.e., the warrantless, non-probable-cause search, of every kid in middle school and high school participating in any extracurricular activity. By a vote of 5-4, the Court upheld the searches. At the time of the arguments in Earls, Dahlia Lithwick of Slate rhetorically asked, "If you could pick just one Supreme Court justice to spontaneously haul off the bench, say, in the middle of oral argument, and drag into a nearby bathroom, where they'd be forced to hike up their robe and pee into a Dixie cup, whom would you choose?" More (Slate 03.19.2002). She also suggested that the justices might have perceived the reality of such testing differently, might have felt differently about it, if they were subject to being hauled off the bench and forced to give urine samples. But maybe not...  Anyhow, as judges are pilots of the vessel known as The Common Law, it follows, as the night follows the day -- doesn't it? -- that their health needs to be monitored. Perhaps daily checkups are in order, including the giving of urine samples for drug testing at the discretion of the Juristic Health Czar. Sound farfetched? See, Random drug testing suggested for judges, court staff:

Supreme Court orders random drug testing of judges, staff. "The Supreme Court has created a special team to test members, officials and employees of the judiciary for illegal-drug use. Chief Justice Hilario Davide Jr. and two other senior magistrates of the Court issued a three-page memorandum creating the team that will supervise the drug test...." More (The Manila Times 07.31.2005).

 Supreme court says sometimes it's okay for married women to lie to cops. "[Italy's] Supreme Court has ruled that it is acceptable for wives to lie in order to cover up an affair...The court said that a 48-year-old woman...was within her rights to lie to police over having a lover...The judges...[said] that 'the fact of having an affair is a circumstance that could cause damage to her honour in the minds of her family and friends'...[Italy's] Supreme Court...regularly causes uproar with its controversial judgements. They include the ruling, which was later rescinded, that a woman could not be raped if she was wearing tight jeans, since they could only be removed with her consent." More (UK Telegraph 03.08.2008).

 Eight-year-old boy passes law school entrance exam, plans on being judge. "Brazil's lawyers have been shocked to find that a boy aged eight [Joao Victor Portellinha] has managed to pass the entrance exam to law school...'My dream is to be a federal judge,' the boy said...'So I decided to take the test to see how I would was easy. I studied a week before the test.'" More (UK Guardian 03.07.2008). Comment. Not sure why but we're reminded of Gov. Arne Carlson's explanation for appointing a 40-something woman with limited judicial experience as chief justice. As stated in Mary Lahr Schier (ed.), Take Your Victories As They Come -- The Carlson Years in Minnesota Politics (1999):

Age was an obvious factor in [the governor's judicial] appointment strategy...A strong believer in the idea that each generation has its time on the stage, [the governor] wanted to turn the courts over to another generation. "I think age is terribly important," [the governor] said. "You want people who know how to relate. A person of my generation ought not to kid himself that he understands today's 22-year-old. I don't. I don't understand the young people with tattoos. I don't understand teenagers with earrings. You need somebody who's younger and more relevant to that age group. Kathy Blatz [whom he appointed MN's Chief Justice] is only in her 40s. She's much more connected to it than I am."

Carrying this thought to its logical extreme, we look forward to the day -- say, when he becomes a teenager -- when Joao Victor is appointed Chief Justice of the Supreme Court in Brazil. Perhaps concurrently, we in MN can pass an amendment to the state constitution to require mandatory retirement of judges at, say, age 50, on the theory that some people get Alzheimer's Disease as early as age 50 and that the best approach to prevent the nightmare of having a sitting judge with hidden or undetected Alzheimer's is the proactive approach of preventing people 50 or older from serving as judges. But see, BurtLaw on Mandatory Retirement of Judges.

 David again takes on Goliath over speech regulations. Minnesota attorney Greg Wersal, the David who has twice taken on the MN judicial establishment and prevailed over its attempts to regulate the free speech rights of candidates for judicial office, is back in federal court again, this time challenging a) a recently-adopted rule limiting the ability of judicial candidates to personally solicit campaign contributions only at gatherings of 20 or more people, and b) the judicial canon prohibiting judicial candidates from endorsing other candidates. The case, Wersal v. Sexton, et al., 08-CV-615, has been assigned to District Court Judge David Doty. (Complaint; Preliminary injunction memo). Wersal is again represented by Attorney James Bopp -- see, Terry Carter, The Big Bopper: This Terre Haute Lawyer is Exploding the Canons of Judicial Campaign Ethics, ABA Journal (Nov. 1966) via Indiana Law Blog -- "who successfully argued the 2004 challenge to Minnesota's previous solicitation clause, as well as the 2002 U.S. Supreme Court case Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which forms the basis for this action." More (The Conservative Voice 03.05.2008). Comments. a) According to the just-cited ABA Journal profile, Bopp's "payday" in the White case alone, $867,000, came from "the other side," i.e., ultimately/presumably (unless I'm missing something) from the Minnesota taxpayers. See, The high cost of defending the unconstitutional -- the MN experience. b) In my 2006 post noting that SCOTUS had declined review of the 8th Circuit's decision rejecting MN's ban on personal solicitation of contributions by candidates, I predicted that "in the days ahead we'll be hearing more of the usual Chicken Little 'sky is falling' arguments about the impact of the 8th Circuit's decision." It turns out I was right, as readers of this blog know. Indeed, although Mr. Wersal and I are not ideological soulmates, I said later that I believed he was accurate in his statement that MN Judicial Establishment's response to the White case and to its later application by the 8th Circuit has been "nearly hysterical." MN's 'establishment' still upset by S. Ct.'s judicial free speech decisions. c) I was asked about the old version of the solicitation ban in 2000 during my campaign against the incumbent MN chief justice in the general election and, while declining to express an opinion on it, I said (see, here and here) it wasn't a problem for me because I didn't intend to solicit or accept contributions or endorsements; it also wasn't a problem because I wanted to (and did) run a cheapskate's campaign, spending under $100. Whether the modification of the solicitation rule in response to the 8th Circuit's decision rejecting the flat ban will pass muster remains to be seen. Offhand, the "20 person" requirement strikes me as arguably not only irrational and arbitrary but discriminatory, possibly favoring medium and large law firms and their favored candidates, typically incumbents -- since it's common for the bigger firms to allow judges on the premises to meet, at voluntarily-attended gatherings, with partners, associates and others in the firm who are interested in supporting them. See, my 2000 campaign position paper Endorsement & Contributions (dealing, inter alia, with law firm "nonfundraisers"). d) The ban on judicial candidates endorsing other candidates didn't affect me as a judicial candidate, because i) I didn't want anyone endorsing me, ii) I didn't want to endorse anyone else, iii) as a voter I've never been persuaded by an endorsement, and iv) I don't think most voters are persuaded by them. Still, I think the ban is questionable, particularly given past practices of joint appearances by incumbent judges facing challenges, since by appearing jointly they seem to be supporting/endorsing each other. You don't think they do it? Consider, in this regard a long piece I posted on 10.22.2000 to the campaign blog I personally kept on my personally-maintained campaign website. The relevance should be apparent from the title of the posting: What's the difference between judicial "outreaching" and "campaigning"? And who pays? And is the court web site a de facto campaign site? And what about joint campaigning? Also of possible relevance are my musings in my 01.07.2006 Daily Judge entry titled Sitting judges to testify in support of Alito -- is that okay?

 Plymouth, MA believes restored courthouse will revive city's historic center. "Plymouth officials say they have a plan to preserve the 1820 Plymouth County Courthouse and give it a starring role in the revival of the town's historic center. 'Not only is the courthouse architecturally a beautiful building,' said Town Manager Mark Sylvia, 'it's historically significant.' The building connects Plymouth County history to the early years of the American Republic. Preserving the courthouse as an attractive building with public access is also important to the economic revival of a part of downtown hurt by the loss of court business when the state built a new courthouse outside the town center, officials said...." More (Boston Globe 03.06.2008). Comment. The county officials in Seneca County in Ohio could learn from the wiser public officials in Plymouth, Mass. See, my extended comments earlier this week at The failed campaign to save a historic courthouse from demolition.

 Protest whistling as free speech. "A judge said Harold Hauser can go back to serenading downtown Lakeland shoppers after he was slapped with a disturbing the peace charge for whistling too loud Wednesday...." More (Ledger 03.07.2008). Comment. I'm reminded of a law clerk we had at SCOMN from Harvard Law via Harvard College whose freshman dorm room in Harvard Yard overlooked a person on Mass. Ave. at Harvard Square who constantly sang the same Elvis song over & over. BTW, I'm okay with the FLA judge's decision, but I find it harder than the issue of, say, whether draft-card burning is protected political speech. I've always thought it is, but SCOTUS -- in U.S. v. O'Brien,  391 U.S. 367 (1968) -- disagreed with my position. I recall famed D.C. trial lawyer Edward Bennett Williams, in response to a question at a Harvard Law Forum held before an overflow crowd in Ames Courtroom on 10.14.1966, expressing puzzlement at the notion that an act such as draft-card burning could constitute protected speech. Turns out the Court agreed with him. It, of course, was wrong, and I was right. :-)

 Judging judges, and judging whether a banana is better than an orange. Blog notes by Anna Pickard (UK Guardian 03.07.2008) from the Crufts dog show, the #1 dog show in the world:

a) "Much of the muttering around the rings comes from talk of the judges. As experts in a particular breed, the breeders who breed that breed are, in turn, experts of the experts who stand in judgement over their dogs, and quietly judge the judges. Though only the most honest and fair get through to judge at Crufts, partiality is not, it is said, unknown at club level, and a certain level of wariness persists...." Comment. In dog judging, the owners and handlers of the dogs, not the dogs themselves, judge the judges, whereas in common law judging, the judged judge the judges. "But wait," I seem to hear Jane, my border collie friend saying, "we 'bc's' judge people and other kinds of dogs all the time, so don't assume we don't judge doggy dog judges! They're all herd bait to me." (See, Will the eyes of Texans (and Minnesotans) be upon judges if TV gets in the door?)

b) "Deciding between dogs of the same breed is one thing -- one is obviously glossier, one walks more fluidly, one stands more poised. It's like saying a one banana is more gracefully curved or a better yellow than another, albeit on a more skilled and subjective scale. But watching Best of Group is like watching the bananas being compared with the oranges. Each is lovely in their own way, but it's far more complex than the comparing of like with like that has gone on earlier in the day...." Comment. A number of examples from common law judging come to mind as being similar in some way to judging among different but equally important breeds of dogs. One, of course, would be when different but equally important constitutional provisions are seemingly in conflict and it is the judge's task to somehow resolve the conflict. I dealt with how judges resolve such conflicts in my essay entitled, "The Voices of a Judge -- The Judicial Opinions of Chief Justice Peter S. Popovich of the Minnesota Supreme Court," The Judicial Career of Peter S. Popovich (MN. Justices Series No. 10, 1998) (detailed citations omitted), excerpted at BurtLaw on a Supreme Court Justice's 'votes,' where I said, in part:

One of the things required is the recognition that life isn't always a simple matter of choosing good over bad, that there are complexities, gray areas, conflicts of good versus good. "Anybody can decide a question if only a single principle is in controversy" (Justice Felix Frankfurter), but the world of truth is contradictory. "Mad contradictions flavor all our dishes" (Ralph Waldo Emerson). For every truth, there is a counter-truth: individual rights and majority rule; freedom and order; fifty states and one indivisible nation; religion and secularism; change and stability; privacy and knowledge; new truths and old ones; discretion and rule; mercy and justice; and so on. If "the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function" (F. Scott Fitzgerald), then one of the tests of a first-rate appellate judge, when these "great antinomies...present themselves like gladiators for our favors," is the ability to "discover the precise issue in controversy, the precise consequences of one decision or another, and the possibility of an accommodation by deflating the isms and narrowing the schisms" (Professor Paul Freund). Robert Frost said, "Life sways perilously at the confluence of opposing forces" such as Justice and Mercy or Change and Stability. One might also say that life is even more perilous if one is interested only in Change or Youth, on the one hand, or Stability or Age, on the other. As in the case of any antinomy, it is when the two opposing concepts are in tension with each other that creative thinking and acting occur.

 Will the eyes of Texans (and Minnesotans) be upon judges if TV gets in the door? "The Senate Judiciary Committee Thursday advanced legislation that would pave the way for TV cameras in federal courtrooms. Right now, those courts are closed -- and many federal judges like it that way. The bill falls short of a mandate. Instead it allows judges to decide for themselves whether cameras would be appropriate. The Judicial Conference, which sets policy for the federal courts, hates the idea anyway. In September, Judge John Tunheim of Minnesota told a House panel that cameras could intimidate witnesses and jurors...." James Oliphant's blog (Baltimore Sun 03.07.208). Comment. Or is it that judges would feel intimidated by having their ultimate bosses, ordinary citizens, get first-hand the kind of information they need to evaluate judges? Judges always prate on about their "independence," which is fine and well, but the Siamese twin of judicial independence is judicial accountability (one doesn't survive without the other) and, sadly, you almost never hear judges breathe the word "accountability." Let Justice Brandeis' disinfecting sun shine in on courtrooms, I say.

 'Axed judge' is thinking of 'fictionalizing,' publishing his scathing diary. "Axed Australian Idol judge Mark Holden says he kept a diary during his last season with the talent show -- and the contents are so scathing they couldn't be printed. Holden -- whose exit was revealed exclusively by The Daily Telegraph online earlier this week -- says that the diary would have to be 'fictionalised' in order to be published. Which he's seriously looking at doing...." More (News.Com.Au 03.07.2008).

 Point, counter-point -- or who was intimidating whom? "The brother of one of Tom Svekla's alleged victims was ejected from the accused killer's trial yesterday after apparently making a gun-to-the-head gesture. However, Keith Lajimodiere -- older brother of slain prostitute Rachel Quinney -- claims he was merely scratching his head[,] and family members maintain that Svekla had been smiling at them in a 'snide and cocky' manner...." More (Edmonton Sun 03.07.2008). Comment. They have crime in Canada? They have trials in Canada? Who knew?

 Judge denies sending e-mail -- did someone try to 'set her up'? There's a harassment investigation going on in Tarrant County, TX involving two court reporters, Judy Miller, who is white, and Reggie Butler, who is black. Butler gave authorities an e-mail purportedly sent by Tarrant County Criminal District Court Judge Elizabeth Berry to Miller saying, in part, "Judy, we will talk in-depth later about the Reggie issue. I agree with you, though. I am not at all satisfied. Who does that fat [N-word] think he is anyway? We will handle him one way or another!" When word got out about the e-mail, Judge Tarrant cut short her vacation in Central America and returned to hold a press conference in her chambers in Fort Worth. She said, "It is absolutely 100 percent false. It was not authored by, created by, written by, typed by or sent by me." An assistant county attorney backed up the judge, saying, "This is not a legitimate e-mail. It is not anything that came off a county computer or off our e-mail system." Miller also said the e-mail was "not real," that it was "never sent or received." More (Dallas Morning News 03.06.2008). Comment. Thus far, it appears the e-mail wasn't sent from the judge's computer. Even if it had been, that wouldn't mean the judge sent it. I worked at a state supreme court for many years and had a computer provided by the court and connected to the court's e-mail system as well as to the internet. Any number of people had access to my office. (I had a TV provided to view oral arguments via a closed-circuit channel. Some mornings when I got to work I'd turn it on and discover that it was tuned to a different channel, meaning someone likely had been in there watching TV overnight.) Anyone with such access to a judge's office in any number of American courthouses could use a judge's computer, assuming it is not password-protected (and some people know how to bypass those), to send a fake e-mail under the judge's name.

 Senators want more federal judges for Minnesota. "Minnesota could get more federal judges if Sens. Norm Coleman and Amy Klobuchar have their way. They said Wednesday they will push legislation to add three judgeships to help reduce one of the heaviest caseloads in the nation...." More (Star-Tribune 03.06.2008). Comment. Or the federal government could stop prosecuting people for conduct better left to regulation by the states. In recent years there has been a dramatic and for the most part unjustified 'federalization' of criminal law that has contributed significantly to the workload of the FBI, federal prosecutors, defense counsel and federal judges. William Anderson and Candice E. Jackson, Washington's Biggest Crime Problem -- The federal government's ever-expanding criminal code is an affront to justice and the Constitution (Reason April 2004); George D. Brown, New Federalism's unanswered question: Who should prosecute state and local officials for political corruption? (Washington and Lee L. Rev. 2003); Readings on federalization and overcriminalzation (Overcriminalized.Com). Moreover, it's my observation that when the feds prosecute criminal cases, they -- unlike most state prosecutors, at least in MN -- tend to "throw the book" at defendants and adopt an overly-rigid approach to plea negotiations, making for clogged courts.

 The failed campaign to save a historic courthouse from demolition. "It came down to a vote of the people, and the people of Seneca County said no to a [bond] plan to save and restore the county's historic 1884 courthouse...." More (Toledo Blade 03.05.2008). Comments. a) Now that voters have rejected the $8.5 million bond issue, it looks like the county board will go forward with its short-sighted plan to demolish the building, which is #1 on the list of most-endangered historic buildings in Ohio, and replace it with a new one. Too bad. I always like seeing historic public buildings preserved, especially special ones like this one. This one, as our readers may remember from earlier postings, is a "gem" by one of the leading "rock star" courthouse architects of his day, Elijah J. Myers. A local history expert described it as "the heart of the community" and "the single most important building in the county." More (Toledo Blade 07.26.2007). An expert in county courthouses from Texas said it's worth $30 to $50 million, that it's in remarkably good condition ("better than [the Ohio] state Capitol building, [with] higher-quality woodwork"), and that while it would cost $8 million to restore, the county might earn back the $8 million in  heritage tourism, new jobs and tax revenues. More (Toledo Blade 09.18.2007). Do you tend to doubt the economic value of historic county courthouses? People in Texas don't. Texas has made itself proud and is the leader in preserving historic courthouses, and many of the saved-and-restored courthouses are part of the great Texas tradition of Christmas lighting festivals, which draw visitors (and shoppers) to county seats from far and wide. b) Ought one be surprised by the vote? All I can say is I'm not. Our socio-political culture these days doesn't value "the old," no matter how good it is, whether "the old" be people or judges or buildings or sports stadiums or ancient tried-and-true rights. Putting the best light on the vote, one might surmise that perhaps the especially bad economic conditions in Ohio had a big effect on the voters, who understandably were not in a mood to approve an $8.5 million bonding bill, even though the costs of both tearing down the historic building and erecting a new one not half as good as this gem likely will cost more than restoring it. Ironically, the bad economic times in Ohio are in part a result of the recent busting of the residential real estate bubble, a bubble that was fueled in part by our culture's not valuing either fine old buildings (as in tearing down lovely old houses and replacing them with tasteless McMansions") or the great old middle-class virtues (such as saving and repairing rather than destroying and discarding. c) The best depiction of what is taken when a beloved old public building is taken down, to be replaced by something "new," was a 1971 episode of Rod Serling's Night Gallery titled They're Tearing Down Tim Reilly's Bar, which Serling said in his final interview was one of his favorite creations. Among the beloved buildings of my youth in a small town in western MN that have been demolished are the Carnegie library (right), presided over by Nina Brown and Pansy Syverson, where I used to while away summer afternoons reading Life and Photoplay; the southside grade school, presided over by Julian J. Meyer, the principal and my fifth grade teacher, who helped me learn the International Morse Code and enough electronics to become a ham radio operator; Our Savior's Lutheran Church (lower left), presided over during my youth by the stern but memorable Rev. Harold S. Nashiem, about whom I wrote this Easter poem; and the great old Great Northern Ry. Depot, where as a kid I sat on top my dad's shoulders to watch the National Guard board a train enroute to training in one of the southern states before embarking for Korea. Another such building, the Paris Hotel, which was on my downtown afternoon newspaper paper route, was destroyed by fire. The large courtroom in the courthouse -- which I recall visiting with my father one night in the early 1950's to view the county election returns being posted on blackboards -- was, I believe, cut up to make smaller courtrooms at the same time that a not-attractive-to-my-eyes jailhouse addition to the courthouse was built. The wonderful Railroad Park, where I used to sit with friends and watch long trains go by on hot and lazy summer afternoons, was diminished basically into extinction in order to provide more un-needed downtown parking. One of Thomas Wolfe's posthumously-published novels was titled You Can't Go Home Again. The destruction of each beloved building of my youth is one more reason for me to not even want to go home again -- except in memory. d) Am I alone in feeling this way? No. Here's what Garrison Keillor had to say in his blog: " deeply offended by the destruction of historic and graceful old buildings in St. Paul, and Minneapolis, and before that, in my hometown of Anoka. I can still get hot under the collar if I talk about the old courthouse and the old Carnegie library in Anoka that got busted by vandals in suits and ties forty years ago, and the old fire barn and the old St. Stephen's church." Blog posting (Post to the Host - PHC 06.28.2007). And see, Garrison Keillor, The Library Fix (Salon 06.27.2007) ("My old hometown Carnegie library with the columns and high-domed ceiling was irreplaceable, and so of course it was torn down by vandals in suits and ties and replaced with a low warehouse-looking library that says so clearly to its patrons, 'Don't get any big ideas. This is as good a library as you clowns deserve.'") e) Does it have to be this way? No. Any community that wants to save historic main streets, promote restoration rather than teardowns (& the obscene McMansions that replace them), etc., should contact former-Minnesotan & former-Mondale-aide Richard Moe and his staff at the National Trust for Historic Preservation, a terrific organization. Too bad the folks in my hometown didn't have the wisdom to do that. But, wait! It's never too late to start afresh. I'm thinking of the historic second-floor Benson Opera House, which, last I heard, was used for storage by its private owners. Perhaps funds could be obtained to purchase and restore it.... Then again, I'm probably alone in seeing any possible worth in doing that. Update. Supporters of preservation of the courthouse are saying the commissioners, instead of asking the voters if the courthouse should be demolished, put an "excessive" bond issue on the ballot (more than the county would have had to pay to preserve it, given state tax credits), knowing that people were struggling financially and would be unlikely to approve such a large bond issue. More (Toledo Blade 03.07.2008).

 Annals of sleeping judges, fake recordings of hearings that never took place. "Judge Pavel Nagy from Mlada Boleslav, central Bohemia, will not be removed from office, the Supreme Court ruled today cancelling last year's ruling by the Prague High Court that deprived Nagy of his office for extensive shortcomings in the performance of judge's duties." But the judge's salary will be reduced by 25% for six months. More (Ceseknoviny.CZ 03.05.2008). Comment. A psychiatrist testified that "sleep apnea syndrome" may have affected the judge's work. The fascinating tidbit in the story is the revelation that the judge not only reported that he held scheduled court hearings when in fact he didn't but in at least one instance he "invented the alleged speech by the defence counsel, and the alleged verdict and made a recording of the proceedings as if they had taken place."

 Is there life after 'TV judging'? Lawyer Larry Joe Doherty, who was the TV judge on Texas Justice, has won the Democratic primary and will now run in the general election to represent the Texas 10th District in the U.S. House of Representatives. More (Dallas Morning News 03.05.2008).

 County judges contradict supremes. "DeKalb County's Superior Court judges have issued a rare reply to a Georgia Supreme Court decision, disputing a claim that they struck a deal with county public defenders to limit appeals...." Last week SCOGA reversed a 2001 conviction based on an assertion that the public defenders failed to raise on direct appeal the issue of the racial composition of that defendant's jury pool because of a 2001 deal the public defender's office made with the DeKalb County judges. The supposed deal was that public defenders would not pursue any challenges to jury composition in the defendant's case and other past cases in return for a promise by DeKalb County judges to speed up changes in jury selection procedures. The judges now have responded by issuing a formal statement in which they "unequivocally deny the occurrence of any discussion, negotiation or agreement" such as that on which SCOGA based its decision. More (Atlanta Journal-Constitution 03.04.2008).

 DA won't charge judge with crime for accepting loan, meals from attorney. "Prosecutors will not file criminal charges against a Broward County [FLA] judge who accepted $3,600 in loans as well as meals from an attorney who represented defendants in the judge's courtroom...." More (Sun-Sentinel 03.04.2008). Comment. We assumed all along he didn't commit any crime. Why? Cuz of a quaint little doctrine we like to call "the presumption of innocence."

 Senate committee puts judge's tenure in doubt over ethnic 'slur.' "A Middlesex County Family Court judge failed to win the approval of a Senate committee Monday in his bid to be reappointed after senators took him to task over 'racially insensitive language' he used during a court hearing in 2005. Superior Court Judge Fred Kieser Jr. of Metuchen called the adult daughter of a petitioner in a child-support hearing a 'sponge' and used the phrase 'no tickee, no laundry'...." The "child" in question is African-American; the alleged slur is based on an old 19th century stereotype of Chinese immigrants as launderers with limited English skills saying "No ticket, no laundry." More (New Brunswick Home News Tribune 03.04.2008). Comment. Periodic review by legislators of the tenure of judges is a bad idea, even worse than the plan beloved by college political science profs that is currently being advanced by some self-styled good government types in MN, the so-called Missouri Plan, which was a response to the machine politics of Tom Pendergast in MO. As we've explained elsewhere, the populist MN Plan, which does not deprive voters of a role in judicial selection, has produced a much better judiciary than that produced by the MO Plan -- or by the "New Joisey Plan" -- and we deplore the fear-mongering being used to try convince MN voters to give up their role, which they have played so responsibly, in judicial selection. Update. Governor withdraws reappointment of judge over statement (Star-Ledger 03.14.2008).

 MN court cuts back customer service in response to budget cuts. "No one will answer the telephone at the Winona County [MN] court administrator's office on Wednesday mornings, and don't bother going to the counter. The customer service counter at the courthouse will be closed Wednesday mornings as part of budget cuts in the 3rd Judicial District that went into effect this month...." More (KXMB.Com 03.04.2008). Comment. Now, during fiscal hard times, governmental entities, including our courts, need to practice greater budgetary discipline and fiscal accountability. There is a time for writing free verse and a time for writing in sonnet form. This is a time for our public institutions and agencies to exert a little creative self-discipline in governing, the kind poets must exercise in using the sonnet form. I've said it before and I'll say it again, I've never seen a governmental budget that I couldn't cut -- and cut without reducing public service. My guess -- and it's just an experience-based guess -- is that a way could be found to keep answering the phone and keep the counter open on Wednesday mornings in the 3rd District. In my experience, good government employees are team players and are willing to pitch in and work a little harder if need be -- both to keep their jobs and to keep things running -- during hard economic times. Further reading. BurtLaw's Law and Judicial Economics.

 New benchbook for sex cases -- hmm. "A judge is presiding over a rape case when the defendant's lawyer indicates he wants to use the alleged victim's past sexual experiences as evidence. Instead of calling a recess to research the issue, keeping all anxious parties waiting, the judge can consult a reference guide of statutes and appellate cases dealing with that issue. The resource is the Sexual Violence Benchbook, a CliffsNotes of sorts for judges. Written by former Northampton County Judge Jack A. Panella, now a state Superior Court judge, the benchbook will be given to all judges in Pennsylvania by the end of March...." More (Allentown Morning Call 03.03.2008). Comment. I'm slightly troubled by the story. It says that a main contributor to the benchbook was a "former deputy chief of the sex crimes prosecution unit in the Manhattan district attorney's office," that the judge "collaborated with the Pennsylvania Coalition Against Rape, which initiated the idea," and that "[f]unding came from the U.S. Department of Justice, Office of Violence Against Women, and a grant from the Pennsylvania Commission on Crime and Delinquency." The story, at least, makes one wonder if it's a guide more suitable for those prosecuting such charges rather than a guide suitable for judges -- whose job, after all, is to keep his cool, to "strike the balance true," and to be an impartial referee. Let's hope a) that the defense bar played a role in vetting the book and ensuring a fair presentation and b) that trial judges will do their job and go beyond such "guides," as by reading the statutes, rules of evidence, cases and treatises themselves. Further reading. See, our relevant comments on the issue of whether there ought to be separate courts for prosecution of sex crimes at Playing the 'sex crime card.' For additional balance, see, also, 'Crying Wolf' (and the linked-to article of the same name by Christie Blatchford) at BurtLaw's Crime and Punishment.

 Female officer is scrutinized for allegedly ordering attack on judge. "An woman IPS officer's conduct has come under the Supreme Court scanner for allegedly ordering her bodyguards to assault a Central Administrative Tribunal (CAT) judge during his official visit to Ranchi last month... The IPS officer...has been sent for psychiatric treatment to Ranchi Institute of Neuro-Psychiatry and Allied Sciences (RINPAS)...." More (The Hindu 03.03.2008).

 In re one judge's courage during Indira Gandhi's 'emergency.' "[The] proclamation of emergency by the then PM Indira Gandhi made fundamental rights an illusion...[A]n opportunity [to prove its mettle] came before the Supreme the form of a case titled ADM Jabalpur vs Shiv Kant Shukla...[But t]he next-generation luminaries on the bench, except Justice [H. R.] Khanna, caved in and agreed with the then attorney general...that if a policeman killed a passerby just for fun, there would be no remedy available to the kin as right to life had zero value during emergency. All of the[ others]...failed to honour their oath...They simply flowed with the tide. Showing the lamp to these luminaries was Justice Khanna, who penned the golden line -- fundamental rights, especially the right to life, cannot be violated even during Emergency. The dissent cost him heavy...." More (Times of India 03.03.2008).

 In re a 9th Circuit judge's 'blasting' his brethren. "It was unusual enough when a high-level federal judge -- who is the brother of Sen. Gordon Smith -- blasted his own court for decimating the Northwest logging industry with 'blunderbuss' rulings that went way too far. But the extraordinary scolding by Milan D. Smith Jr. last year apparently got the attention of his fellow judges on the 9th U.S. Circuit Court of Appeals, the top federal court in the West. They recently took the unusual step of voting to have a full panel of judges reconsider the case that set Smith off...." More (Oregonian 03.03.2008).

 Judge Zweledinga Sabbath Peko dies. "Judge Zweledinga Sabbath Peko, [66,] Acting Deputy Judge President of the Transkei Division of the High Court, died after a long illness...." More (IOL - South Africa 03.03.2008). Comment. Why'd we include this? Maybe only to show that not every judge in the world is named "Judge Anderson" or "Judge Parker."

 Judge is 'rock star' -- er, popular at local karaoke club. "DJ Mark Bishop plays the theme from 2001: A Space Odyssey when he introduces 'The pride of Courthouse East. The man with the golden gavel. The one, the only, JUDGE JOHN PREVAS!'" And then the Baltimore City Circuit Court judge, briefless (as in free of his "court briefs") and robefree, starts in singing "Steely Dan's Cousin Dupree, his signature karaoke song." The judge makes an appearance every Wednesday evening at Castaways in Canton. If you've got a lot of time of your hands, you can hear him by going to YouTube and searching for "Castaways Karaoke." More (Baltimore Sun 03.02.2008). Comment. I have no problem with a 60-year-old judge singing off-key (or on-key) every Wednesday at the local karaoke club. But, hey, I'm such a tolerant dude that I also have no problem with a very attractive 43-year-old female judge having her own "page" at Friendster.Com and posting pics of herself in, say, a tasteful evening gown. Read on...

 Disgruntled litigant strikes out at female judge for 'sexy' photo. "The [Philippines] Supreme Court [has] ordered a probe into a complaint filed by Steel Corp. against [Batangas City Regional Trial Court Judge Maria Cecilia (a/k/a Sesil) Austria, 43,] who posted a 'sexy' photo of herself on the Friendster website. The High Court...asked [the judge to respond to] a complaint filed by Antonio Lorenzana, Steel Corp. vice-president. He is fighting Austria's decision to rehabilitate the company...." More (Manila Times 03.02.2007). Comment. We offer you a link to Judge Austria's Friendster page. The photos she's uploaded to her "page" are modest by American standards. In a couple of them she's wearing a low-cut dress that shows her shoulders. In another she's wearing the sort of gown a beauty pageant contestant or an overly-modest Hollywood celebrity might wear on the Red Carpet. But some people in the Philippines, while not arguing that female judges should wear chadors or burqas, seem to think they should always, even in their private lives, dress "conservatively," whatever that means, and act "dignified," whatever that means. Others think she did nothing wrong in posting the photos; writes one: "Don't judges have the right to be hot and pretty? PinoySpy's BigBrother sees nothing wrong in these photos. It's not Judge Ma. Cecilia Austria's fault that she's hot. In fact, the photos established her as one of the hottest female judges in the Philippines, aside from Asra Trinidad." Comment (quoted at PinoSpy Reporter). Further reading on judges and internet dating/friendship. a) Annals of judicial cyber-dating and 'judicial hellholes.' b) Annals of judicial cyber-dating, part II. c) Annals of judicial cyber-dating, part III -- Which judge named to Supreme Court was a computer dating pioneer?  On the subject of what's a lovelorn judge to do, see our extensive comments at d) Judge publicly admonished for 'inappropriate' relationship with employee and e) Commission says judges can't socialize with courthouse hoi polloi. Essential readings on judicial and courthouse fashions. a) Judicial Swimsuits and the Rules of Judicial Conduct at BurtLaw's Law and Swimsuit Issue (Historic Swimsuit Issue). b) Latest developments in courthouse fashions. c) Annals of Courthouse Fashion, part I: Another judge tries instituting courthouse dress code. d) Courthouse Fashion, part II: The Viking influence on judicial fashions. e) Courthouse Fashion, part III: Judges voice objection to some lawyers' attire. f) Judge-endorsed BurtLaw Bench Pants. g) BurtLaw Super-Privacy Robes. h) Durham courts follow lead of NBA. i) Judge Hlophe speaks out on courtroom dress & decorum. j) Contemptuous courtroom attire? k) What's so bad about shorts & tube tops in courtroom? l) A nostalgic look back at another instance of judicial stickling. m) Judges allowed to go bare-headed during U.K. heat wave. n) Should you beware of a judge who dresses up as a clown or Santa Claus? (scroll down).

 Justice Breyer as 'master of the hypothetical.' "The nine justices in black robes file into the Supreme Court consumed with thoughts about the great legal issues of the day. Only one of them is likely to ask questions involving raccoons, an unruly son, pet oysters or even the dreaded 'tomato children.' When Justice Stephen Breyer leans toward his microphone at the end of the bench, lawyers can expect to be asked almost anything. The 69-year-old Breyer is the court's most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and occasionally bizarre. Breyer, Court Master of the 'What If?' (AP.Google 03.02.2008). A Selection of Justice Breyer's Hypotheticals (AP.Google 03.02.2008). Comment. Once a law prof, always a law prof? It reminds me of stories of Justice Frankfurter, like Breyer a former Harvard Law prof, trying to "educate" his colleagues. (Note: It didn't work.)

 The fine art of hiring court attendants. "High Court registrar Peter Fantham told how John [Howden, who is retiring after 18 years as 'attendant' at High Court at Christchurch, was hired.]...[I]n August 1989...the court [was] given permission to employ nine attendants. There were 248 applications and 27 people were short-listed. 'I wasn't sure what we were looking for, but I knew we had found it in John,' he said. We gave them all a copy of the oath to read out. 'Do you swear by Almighty God, that the evidence you are about to give...' 'John stood up to read it. No-one else did. We realised he had a background in theatrical work.' He has been a distinctive voice in the Court House ever since...." More (Christchurch Court News 03.02.2008). Here's a link to the homepage for Christchurch Court News.

 'Hourigan and McLellan,' a team in court, dance out together. "Torrance Superior Court Judge Francis J. Hourigan and his bailiff, Deputy Doug McLellan, [have] coordinated their schedules [and are retiring together]. It's the same kind of collaboration they've done every day for the last eight years as half of the four-worker team in Department F, which enjoys the reputation of one of the South Bay's most efficient courtrooms...On Friday, before Hourigan, 66, and McLellan, 56, handled the last cases of their careers, their usually subdued courtroom was filled past capacity with colleagues, family and friends for a formal send-off...." More (Daily Breeze - CA 03.01.2008). Comment. Call their exit dance a pas de deux.

 Quote-of-the-Day. "It's very crowded, and you'd be surprised at the number of people who forget to shower." -- Chief Judge Stephen White, speaking at the Joliet, IL Region Chamber of Commerce and Industry during its March luncheon, describing the smell in the third floor hallway at the Will County Courthouse, a hallway that is often so crowded with litigants in misdemeanor court and family court that it's hard to walk through. White says the courthouse is too small and "something must be done." More (Joliet Herald News 03.02.2008).

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

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

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

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

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