The Daily Judge
© 2009 Burton Randall Hanson
      Archives - 06.01.2009 - 06.30.2009
"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 has devoted his entire professional career to the public interest. 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 campaign blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a public interest 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. Dates Captured: September 20, 2001 - December 17, 2001"

A few of our recent postings. a) Like movies? Need CLE credits? b) Will judge's candid remarks about lawyers bar her elevation? c) Judge responds to allegations he had affair with 'rent boy.' d) Your judicial law clerk is sponsored by... e) Convicted judge will keep judicial pension. f) Just in! Hot off the wires! g) UK makes first exception to hallowed right of jury trial in criminal cases. h) Supremes hold judicial mandatory retirement law unconstitutional. i) Annals of secret courts in America. j) Brit judge fulminates on marriage. k) Annals of big-time grand jury investigations: Did judge 'key' neighbor's car? l) War Crimes Court's ex-spokeswoman is on trial for leaking secrets. m) On sentencing a convicted fella to write a book. n) Blogging from a show trial in federal district court in Minnesota. o) Those Alabama decisions. p) May a judge decide who controls the legislature? q) Out-of-town D.A. drops charge that local judge dropped his pants. r) Headline-of-the-Day: 'Wrongly imprisoned man won't shut up about it.' s) ACLU is investigating routine border searches of laptops of international travelers. t) Annals of bias in favor of prosecutors in judicial appointments. u) The bias in favor of youth in judicial appointments. v) Judge who has promoted recycling, cleaning up dumps is cited for illegal burning. w) 'Highly, highly sensitive' probe of high court judge's 'mysterious death' is underway. x) Did judge yell at staff, make sexist/rude remarks to clerks, boast about his status, retaliate? y) 'Bureau' files complaint with conduct commission against high-profile judge. z) Annals of law and swimsuits - herein of men wearing women's swimsuits and.... aa) Female judge is gunned down as she drops her kids off at school. bb) Does 'Three Strikes' apply to judge convicted of third DWI? cc) Lawyer admits helping corrupt judges hide income from scheme. dd) The response to SCOTUS' 5-4 decision in Caperton v. A. T. Massey Coal Company. ee) State's outstanding trial judge in 2003 is indicted by the feds. ff) Judge Bob Moon's not-so-crappy crappie fishing story. gg) Thibodaux's own SCOLA justice is a best-in-show artist. hh) Will we soon be holding bake sales to supplement the income of SCOTUS judges? ii) Judge gives up the legal priesthood to work for Catholic Diocese of Pittsburgh. jj) Tennessee puts issue of abandoning Missouri-style Plan on ice for two years. kk) Annals of judicial avoidance as a form of judicial decision. ll) Quote of the Day. mm) Judge admits she drove while boozy. nn) Those strange Brit ways. oo) Life experiences and judging. pp) Sonia Sotomayor Info. qq) Annals of judicial resignation gamesmanship. rr) Judge who displayed hangman's noose in his chambers is retiring. ss) Judges decide they're entitled to pay raise as a matter of law. tt) Quote of the Day. uu) Judge who was tossed from 'go-go bar' is barred from bench. vv) Trapped in the dark in a courthouse elevator! ww) Panel recommends removal of judge. xx) Court of Judicial Discipline says judge broke. yy) Are Russia's courts corrupt? zz) As part of cutbacks, will MN judges be administering corporal punishment themselves? aaa) Does President Obama approve of Kangaroo Courts? bbb) Selected 'Love Letters' of Governor Mark Sanford. ccc) SCOTUS says strip search of kid at school was unconstitutional but.... ddd) Will state's top judge preside over special session of legislature? eee) Judge is charged with misdemeanors for displaying handgun during traffic dispute. fff) Coroner confirms judge killed self after second DWI arrest. ggg) Annals of court as income generator. hhh) The problem of prison rape and our society's sick tolerance of it. iii) Malaysian judge who uncovered corruption wins award. jjj) Latino Yankee Judge. Among our other relatively recent postings:  a) Quote/Misquote of the Day and What did Justice Coyne really say? b) MN's AG and door-to-door salespeople -- no, I mean door purchases. c) Annals of better living through government expense accounts. d) Annals of toilets as a mark of status within the judicial hierarchy. e) Courthouse to be closed for judge's funeral. f) Should SCOTUS justices be limited to one 18-year term? g) Jeffrey Toobin on C.J. John Roberts's following the party line. h) Was assignment of allegedly-biased Swede judge nonrandom? i) Amidst scandal and allegations, a trial court switches to random assignment of cases. j) The latest on hedge-fund billionaire Geo. Soros, the financier of judicial 'reform.' k) Shouldn't justices' votes on petitions for review be a matter of public record? l) Annals of judicial crises: herein of the courtroom attire of female attorneys. m) Minnesota's 'Three Stooges'-like handling of Coleman-Franken recount. n) Annals of judicial aversion to sunshine. o) Courageous Iowa corn-fed judges unanimously declare ban on same-sex marriage unconstitutional. p) Parents get cheerleading coach fired over old nude photos. q) The 'Sue Me State' reconsiders its own much-touted judicial selection plan. r) Annals of judicial masochism -- herein of law clerk domination of judicial decisionmaking. s) Congressman turns SCOTUS budget hearing into forum on cameras in court, transparency. t) Recent developments in invidious age discrimination against judges. u) Competency -- what mandatory retirement takes away, the big law firms restore. v) On Geo. Soros, the hedge fund billionaire who doesn't want voters having a role in judicial selection.

 Like movies? Need CLE credits? One of my favorite judges, Louis Schiff of Broward County, FLA, is returning to MN, where he studied casebooks and became learned in law, to present a two-day CLE seminar at Hamline Law School in St. Paul titled "The Cinema and the Law: Are Lawyers Still Our Heroes?" Saturday, July 25, 2009 and Sunday, July 26, 2009. 11.75 MN CLE credits. Click here for details.

 Court of Judicial Discipline says judge broke. "Philadelphia Judge Willis W. Berry Jr. broke the law by running a real estate business out of his court office for more than a decade, a state disciplinary tribunal ruled yesterday...." The court will hold a hearing on what punishment to administer. Details (Philadelphia Inquirer 06.28.2009). Comment. I first alerted my readers of the underlying matter back in 2007 after reading a report in the Philadelphia Inquirer saying that Berry, who then had hopes of serving on the troubled PA Supreme Court, a) owned eleven rental properties in north Philly, b) had not been doing a super job of maintaining some of them, and c) apparently had been running his real estate business from his chambers (the Inquirer reported: "There's a sign on the door [of one unit]: 'For Rent, 215-683-7124.' Dial the number and the phone rings in the [judge's] chamber[s]."). Berry was quoted then as explaining that he'd had trouble financing the needed repairs, which prompted me to ask rhetorically (without a smile on my face) whether Berry's troubles might be the result of judges being dramatically underpaid, since Berry was getting paid only $152,000 a year at the time. Further reading. For my views on judicial pay, see, Ten out of 10 pundits agree: Chief's Report on paltry pay was appalling (and included links.)

 Are Russia's courts corrupt? "A special European investigator issued a stinging report Tuesday that alleges widespread political abuse of the Russian courts and urges countries not to extradite people to Russia if they might be denied a fair trial...." Details (Washington Post 06.24.2009). And see, European Watchdog Castigates Courts (Moscow Times 06.24.2009).

 As part of cutbacks, will MN judges be administering corporal punishment themselves? The Star, a Malaysian newspaper, is reporting that Sessions Court Judge Zainal Abidin Kamarudin not only has sentenced a 20-year-old fellow convicted of armed robbery to 10 strikes with a cane (along with 200 hours of community service) but that the judge himself will "personally cane" the boy in court in the presence of the boys' parents on July 15. Details (The Star 06.26.2009). Comments. a) In these hard economic times, with MN courts having to cut-back on hours, court personnel (including caners), etc., etc., we "can't help" (to use a favorite Holmes expression) wondering if some of our judges will follow the Malaysian judge's example and administer in-court canings, typically administered not by judges but by law clerks or deputies. b) On the Singaporean and Malaysian model for punishment of criminal conduct, including its utilitarian, one might say Benthamite, reliance on caning as an effective deterrent, see, Michael Hor, Singapore's Innovations to Due Process (2000). But see, Paul Robinson & John Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 Geo. L. J. 949 (2003). BTW, I'm not a utilitarian, but it's often worth asking, when considering possible solutions to a societal or institutional problem, what a utilitarian's approach would be. c) If I were called upon as a judge to administer a caning, I could save the state the cost of a cane, since I already own one, a cane I no longer use. Back in the 1940's, before Dr. Salk announced development of the polio vaccine, polio was a serious concern, especially in the summer. In 1946 the state fair here in MN was cancelled because of a polio outbreak. I myself caught it circa 1946-1947 and was temporarily partially disabled -- I still have the small blue wooden kid's cane I used for a time in walking, and that is the cane that I could use to cane miscreants. One member of the 'polio survivor's club' of that era who I later came to know well was Chief Justice Peter S. Popovich, a fine man & judge, one of the six Minnesota Supreme Court Chiefs with whom I worked in my 28+ years at the Court. He was laid low by polio about the same time I was. See, Burton R. Hanson, "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). I never spent any time in a wheelchair, but a stunning illness like that affects one's outlook forever. d) Am I being serious in saying I could use my old kiddie cane to cane miscreants? No. For my personal views on the topic, see, Herein of paddling judges and paddling of kids (The Daily Judge 06.05.2008) (criticizing a decision of SCOMN). See, also, my mini-essay at Judge sings, 'If I had my way/ I'd bring back the whip' (The Daily Judge 07.06.2007). Want the Gospel truth? If I were a judge, I'd resign my office before I'd administer the whip (or the cane) or before ordering anyone else to do it. Same goes for the death penalty.

 Does President Obama approve of Kangaroo Courts? "Democratic Senator Russell Feingold...introduce[d] on April 29 the Arbitration Fairness Act, a bill that would make it illegal to force investors and other consumers to agree to give up their rights to go to court before they even buy a product, whether it be a cell phone, a refrigerator or some sketchy merchandise packaged as a risk-free investment. Considering Feingold's bill, Wall Street's shame and Washington's new vigilance about financial regulation, you might figure that President Barack Obama's regulatory overhaul unveiled last week would include some tough talk about killing off mandatory arbitration. But you would have figured wrong...." Susan Antilla, Obama Fails to End Kangaroo Courts for Investors (Bloomberg 06.25.2009). Comment. The best BRock! could come up with was to say that the SEC should "study the use of mandatory arbitration clauses in investor contracts" and then recommend legislation if it deems that appropriate. Further reading. Back in 2007 Getchen Morgenson, the terrific business page reporter at the NYT, wrote a revealing piece about the problem of conflicts of interest on the part of members of the two supposedly independent "public" members of those three-member arbitration panels that ordinary investors "agree" to when they sign account forms Wall Street brokerages require them to sign. I linked to it then and I link to it again: G. Morgenson, When Arbitrators Are Their Own Judges (NYT 08.12.2007).

 Selected 'Love Letters' of Governor Mark Sanford. Details (The State 06.25.2009). Comments. a) The folks in South Carolina are sometimes pretty tough on public servants who dally around. A couple years ago I noted that a judge had resigned after being arrested for not squealing on his secretary's sexual relationship with a prison inmate, a resignation that gave Governor Sanford the opportunity to appoint a successor. That story can be found here (Augusta Chronicle 07.06.2007). b) In the interest of full disclosure to my readers, I should note that my ex-wife's cousin, Bill Rauch, is married to the governor's sister, Sarah. Bill, who was Mayor of Beaufort, S.C., until last year, was co-author of the best-selling memoirs, Mayor (1984) and Politics (1986) with former-NYC Mayor Edward I. Koch, is also author of Politicking - How to Get Elected, Take Action, and Make an Impact in Your Community (2004).

 SCOTUS says strip search of kid at school was unconstitutional but.... In an 8-1 decision, with only (you guessed it) Justice Thomas dissenting, SCOTUS ruled today that the strip search by school employees of a 13-year-old girl suspected of possessing (OMG!) prescription-strength ibuprofen was unconstitutional. But, with two judges (Stevens and Ginsburg) dissenting, the Court held the school employees were immune from suit under the doctrine of official immunity because at the time of the search it hadn't been clearly established that such a search was unconstitutional. The Court remanded for a determination of any liability by the school district. Details (NYT 06.25.2009). Further reading. I'd have ruled that it should have been blatantly obvious to any reasonable Constitution-loving American of average common sense that the search was unreasonably excessive on its face and that defendant employees are not protected by the federal doctrine of official immunity from suit. For my post-oral-argument comments, click here.

 Will state's top judge preside over special session of legislature? "Governor David Paterson...announced that the state's top judge may preside over a special session of the Senate he will call if senators can't settle the dispute [over control of the Senate] by early next week." Governor Paterson Says Top Judge May Preside Over Special Session (CBSAlbany.Com 06.20.2009). Comment. Two questions: a) Did the governor clear this with the judge? If he did, I guess I'm flabbergasted. But one source quotes a spokesperson for the top court as saying, "The governor called and asked him if he would preside. Judge Lippman said he would do it if it was helpful and if both sides agree to it." Details (Poiltics on the Hudson - Lippman in Manhattan 06.23.2009). b) Would a judge really do something like this at the governor's request? I wouldn't, but that's just me. Could the judge do it? This blogger at Newsday thinks not, and I, too, think not.

 The stones of the judicial gods have grinded slowly, but have they ground exceedingly well? Compare and contrast: a) "Despite the fact that Iran uses paper ballots nationwide that have to be counted by hand, only two hours after the polls closed the state-run news agency was already claiming that Ahmadinejad won 69 percent of the vote to Moussavi's 28 percent. The speed with which the results were certified and the wide margin of victory, coupled with some statistical anomalies, have led many to believe the vote was rigged...." Kim Zetter, Crunching Iranian Election Numbers For Evidence of Fraud (Wired.Com 06.15.2009). b) It's now June 15th and over seven months (count 'em) have passed since the general elections and the whizzes and powers-that-be here in MN still haven't finally decided who the voters elected to represent them in the U.S. Senate, incumbent Norm Coleman or SNLer All Franken. Frankenly, taking this long to decide the election (hey, SCOTUS decided the November 2000 Presidential election before 01.20.2001) is almost as bad as the Iranians' deciding their recent paper-balloted election only two hours after the polls closed.

 Judge is charged with misdemeanors for displaying handgun during traffic dispute. Details (Philadelphia Inquirer 06.22.2009). Comment. The judge, who I see no point in naming, claims he acted reasonably (i.e., with justification). I'm presuming the judge, who has a permit to carry the gun, is not guilty. But I'll say this: I've never owned a gun and don't want to own a gun. That's just me. Even if I were a judge and owned a gun, I'd be hesitant about carrying it, for the simple reason that it's too easy, even for one who objectively displays it or otherwise uses it reasonably and justifiably, to get involved in an after-the-fact he-said/she-said dispute over what actually happened. One never knows how an after-the-fact fact-finder is going to resolve such a conflict. Moreover, as Atticus Finch said to his kids in explaining why he didn't carry a gun, if you do that, you give someone else an invitation or excuse to shoot you. ["'You know he wouldn't carry a gun, Scout. He ain't even got one --' said Jem. 'You know he didn't even have one down at the jail that night. He told me havin' a gun around's an invitation to somebody to shoot you.'" Harper Lee, To Kill a Mockingbird ch. 23 (1960).]

 Coroner confirms judge killed self after second DWI arrest. On 05.23 Judge James Heath was arrested for his second DWI within a year. The judge "was found dead in his home...less than 18 hours after" his arrest. Details (Cincinnati Enquirer 05.24.2009). The arrest report later confirmed that the judge told arresting officers that he "would be dead by morning" at the time they put him in the squad car. Details (Cincinnati Enquirer 06.02.2009). Now the coroner has confirmed that the judge had lethal levels of two prescription medicines, a painkiller and an antidepressant, in his blood as well as a high blood alcohol concentration (.12). Details (Cincinnati Enquirer 06.22.2009).

 Annals of court as income generator. "Last week Defiance Municipal Court Judge John Rohrs III said that his court has generated more than $5 million for City Hall over a 50-year period. The comment was made Tuesday during Defiance City Council's discussion about the new municipal court project...." The judge says he calculated the figure "by subtracting the city's share of municipal court expenses from what the court returns to City Hall in collected fines, fees and costs." Details (Defiance Crescent-News 06.23.2009).

 The problem of prison rape and our society's sick tolerance of it. The ACLU has just issued an important press release, which I reproduce here in part:

The bipartisan National Prison Rape Elimination Commission (NPREC) released a report today finding that a law intended to reduce frivolous lawsuits by prisoners denies victims of prison rape and other abuse access to the federal courts. The report proposes national standards to eliminate prison rape and calls on Congress to reform key provisions of the Prison Litigation Reform Act (PLRA), passed in 1996...'We have a deeply ingrained culture in too many detention facilities of tolerating prison rape,' said Margaret Winter, Associate Director of the ACLU National Prison Project, who presented testimony before the National Prison Rape Elimination Commission and was a member of the NPREC Standards Development Committee....

Details (ACLU via Common Dreams 06.23.2009). Comment. George Bernard Shaw (1856-1950), in The Crime of Imprisonment (1922), which I read as a student in sociology at the U. of Minn. in the early 1960's, had some provocative things to say that are still relevant to our society's casual and outrageous tolerance of prison abuses like this. For example, he wrote: "Imprisonment, as it exists today, is a worse crime than any of those committed by its victims." Indeed, Shaw argued that capital punishment may be more humane than imprisonment. I, for one, would abolish capital punishment, reverse the trend toward longer and longer prison terms, reinstate indeterminate sentencing without mandatory minimum terms, increase the use of creative alternatives (not including whipping) to imprisonment, and reclaim from the attic of sentencing law the grand old aim of rehabilitation. In his amazing 1897 speech, The Path of the Law, 10 Harv. L. Rev. 457 (1897), Justice Holmes asked, "What have we better than a blind guess to show that the criminal law in its present form does more good than harm?" And he asked, further, "whether fine and imprisonment do not fall more heavily on a criminal's...children than on himself." Many politicians, even the kind who wear robes, are afraid to ask questions like these or suggest reasonable answers because they worry that the answers won't win them any votes, something talking tough has been proven to do. We could just blame the politicians, those "rabid partisans and empty quacks," saying that they lack the kind of civic courage of which William James spoke; but we voters share the blame for being persuaded by their cheap rhetoric and by electing them in droves. Further reading. My 2004 position paper on Crime and Punishment (Burton Hanson for Congress - GOP Primary - MN 3rd District - "Strength and Prosperity Through Peace").

 Malaysian judge who uncovered corruption wins award. "Penang Syariah court chief judge, Yusof Musa who exposed corrupt practices by a Penang Syariah court staff involving RM500,000, received the Penang Integrity award. Penang Chief Minister Lim Guan Eng said Yusof stumbled upon the corruption practice involving the refund of surety bonds, when he started going through the files after being appointed to the position in February...." Details (Bernama 06.24.2009). Comment. If I were the judge, I'd say, "Okay, an a-ward is fine -- much appreciated -- but where is the re-ward?!" :-)

 Will judge's candid remarks about lawyers bar her elevation? The Jamaica Gleaner is reporting that some members of the bar associations "are opposed to the appointment of Justice Marlene Malahoo-Forte to the High Court bench." Why? "It appears that one year after criticising some lawyers for what she said was their unprofessional 'hustling,' Malahoo-Forte has not been forgiven...." Details (Jamaica Gleaner 06.22.2009). Comment. A "judicial services commission," after consultation with the bar, will make the final decision on Judge Malahoo-Forte's application. One of the great things about Minnesota's wonderful populist-era innovation of direct judicial elections, which allows voters a role in judicial selection, is that judges, bar association types, and back-office politicians don't have the ultimate say in judicial selection: the voters do. Sadly, there's a well-financed campaign to deprive Minnesota voters of their historic right, a campaign that may well succeed. Some of our resources and background briefings for voters on this campaign, which I've opposed from the outset, are linked to at The campaign to deprive MN voters of a role in judicial selection.

 Judge responds to allegations he had affair with 'rent boy.' A British newspaper has alleged that Judge Gerald Price, QC, 60, "had an intimate relationship with...a £250-a-night rent boy." The judge, who is married and the father of two kids, "has provided a detailed account of the circumstances to the senior judiciary and the matter is now being investigated by the Office for Judicial Complaints to decide whether he has breached discipline." Details (UK Telegraph 06.22.2009). Comments. a) An allegation is just that, an allegation. Don't assume it's true unless it either is admitted by the judge or proven true by the appropriate standard of proof. It's my practice -- and, indeed, the American way -- to assume/presume innocence unless proven guilty. b) What's a "rent boy"? I wasn't familiar with the term until 2005, when I came upon a story about a Swede judge -- I emphasize Swede, not Norwegian -- who admitted paying a "rent boy" for sex. See, Swedish Supreme Ct. judge admits paying 20-yr-old for sex. For my in-depth comments on the relative "randiness" of Swede and Norsk judges, see, my 2005 mini-essay, Those "randy" Swede (not Norwegian) judges ("We are blithely and blissfully unaware of any Norwegian judge ever having been caught soliciting prostitutes and we are doubtful any has").

 Your judicial law clerk is sponsored by.... "The Massachusetts judiciary has withdrawn offers for dozens of highly coveted law clerk jobs as a result of expected budget cuts. Instead, the court system is considering filling the vacancies, at no cost to the state, with newly hired private lawyers whose firms have pushed back their start dates because of the bad economy...Many large firms around the country are paying such 'deferred associates' stipends of about $60,000...[and some] are recommending that the young lawyers volunteer at nonprofits or engage in public service...." Details (Boston Globe 06.22.2009). Comments. a) Gosh, Massachusetts apparently has sent out these "too bad" letters to at least 24 hirees. And it is too bad, considering how dependent many judges are on their clerks. Overly dependent, I'd say. However, given the political nature of so many judicial appointments (contrary to what you hear, not only do the "best" people generally not get appointed but Oliver Wendell Holmes, Jr., himself probably couldn't get appointed today), many judges really do need -- and I mean need -- law clerks. b) Are there ethical problems with the proposed arrangement? As stated in the article, which I recommend reading, some people think so. I'm not so sure the ethical problems are that different from the ethical problems of current judicial law clerks interviewing for post-clerking permanent positions with the big, well-known firms while those same firms have cases pending before the court, something that goes on all the time. c) Is there a fairness issue? You bet. The law school grads who decided to spend a year clerking were, in the spirit of public service, willingly foregoing a year of much higher pay (as much as $150,000 for starting associates -- way too high, in my opinion). Now these public-spirited recent law school grads are left high and dry, to be replaced, in many instances, by their classmates who opted to bypass the judicial clerkship option and "go for the gold" right away. Further reading. For my extensive critical comments on law clerk use at SCOTUS and at other appellate courts, see, a) Those SCOCLERK opinions (The Daily Judge 07.18.2008), and b) Alito joins Stevens in opting out of 'cert. pool' (The Daily Judge 09.26.2008).

 Convicted judge will keep judicial pension. The Pennsylvania State Employees' Retirement Board has decided that Judge Michael Joyce, now serving a prison term for insurance fraud, will get to keep his $80,000+-per-year judicial pension because the crime was not related to his employment. Details (Erie Times-News 06.21.2009). Comment. As you might expect, some of the pundits don't like this (click here), but I have no problem with it. If a public official's pension rights under a public pension system have vested, he generally ought not be deprived of those benefits because of a criminal act anymore than an employee in the private sector would lose his rights thereby. But, read on....

 Just in! Hot off the wires! Pension board says corrupt Luzerne County judges (Ciavarella and Conahan) can't collect on pensions (Philadelphia Inquirer 06.15.2009).

 UK makes first exception to hallowed right of jury trial in criminal cases. Now, it seems, the right can be forfeited -- e.g., if there's a significant risk of jury tampering and no reasonable alternatives to holding a trial without a jury are available. More (UK Guardian 06.19.2009). Comment. Says Afua Hirsch: "Human rights lawyers working in countries undergoing democratic transitions say they aspire to the England and Wales model of jury trial, echoing the now notorious sentiments of former master of the rolls Lord Devlin, who described it as 'the lamp that shows freedom lives.' Somebody had better tell them that in England it just got a little darker." Sir BurtLaw agrees.

 Supremes hold judicial mandatory retirement law unconstitutional. The Supreme Court of Illinois, the Land of Lincoln, who removed the chains and freed the slaves, on Thursday, 06.18, ruled, in a 4-2 decision, with one justice not participating, that ILL's judicial mandatory retirement law was unconstitutional. The case is Maddux v. Blagojevich, and here's a link to the majority and dissenting opinions. Comment. It's only a matter of time -- it'll be sooner rather than later -- before others see the light on this issue. My arguments against mandatory retirement of judges are set forth in On Mandatory Retirement of Judges, a widely-relied upon position paper opposing mandatory retirement of judges that I first published in 2000 in my general election campaign for a seat on SCOMN.

 Annals of secret courts in America. "You don't need to go to Iran or North Korea to find secret courts. They're alive and well right here in the United States. On March 26, 2009, I was denied access to immigration courts in Eloy and Florence, Arizona, even though a federal regulation states, 'All hearings, other than exclusion hearings, shall be open to the public' with a narrow range of exceptions -- none of which were cited as a reason for excluding me...." Jacqueline Stevens, Secret Courts Exploit Immigrants (The Nation 06.16.2009).

 Brit judge fulminates on marriage. "Marriage should be promoted by the Government to end the 'social anarchy' of family breakdown, a senior judge said last night. Mr. Justice [Paul] Coleridge accused mothers and fathers who fail to commit to each other of engaging in a game of 'pass the partner' that has left millions of children 'scarred for life.'" Details (The Daily Mail 06.16.2009). Comments. a) I like posting to stories about judges getting on their judicial soap boxes and, like secular popes, pontificating from on high (how high is a soap box?) on this-or-that. The Daily Mail story, which is worth reading in its entirety, says the good judge would like a "stigma" to attatch to "those who destroy family life." (I always like political rhetoric that speaks of "those who" -- who are those terrible "those who" people I always want to ask. Anyhow, in hopes of reaffirming that marriage is "the gold standard," he proposes -- you guessed it -- the creation of a "National Commission." b) My third year at Harvard Law School (which, BTW, is "the gold standard" of law schools, unmatched by any of the UK's law schools), I took family law from Frank E. A. Sander, one of the co-authors of what was then considered a "new wave" family law casebook: Foote, Levy, Sander, Cases and Materials on Family Law (1966), reviewed Drinan, Book Review, 79 Harv. L. Rev. 1727 (1966). The course was interesting, Professor Sander (profiled and pictured here) was excellent, and I still have the casebook, which is filled with good stuff, including this humorous tidbit in a section on what ought to be the legal prerequisites to the issuance of a marriage license:

(i)No marriage [is] to take place without a special license unless there [is] evidence that there ha[s] been a formal engagement registered at least three months beforehand. (ii) The engagement would be registered with the minister...He would have an interview with both applicants and satisfy himself that the parties had gone into the matter thoroughly...[A] questionnaire would be filled in by both parties...[It] would disclose whether they have been introduced to each other's family; the amount of their respective incomes; where they are going to live; and whether they can buy furniture....

Statute proposed by solicitor testifying before U.K. Royal Commission on Marriage and Divorce, Report 1951-1955, Cmd. No. 9678 (1956), quoted in Foote, Levy, Sander, Cases and Materials on Family Law 236-7 (1966). So, I ask, what's the solution to the suddenly-discovered "pass-the-partner" crisis -- is it tougher marriage requirements ("You must own furniture...") or is it a "National Commission" (in the U.S. we call them "Blue Ribbon Commissions" and we typically "stack the membership" of them so they'll say what we want) or is it something else some other judge has yet to propose that will solve all our problems? c) I can't help adding that in a somewhat boring class at Harvard Law School (not Prof. Sanders' class), a friend and I passed the time by passing notes (with-it students now use text messaging). The notes didn't necessarily relate to each other or to what was happening in class. They didn't necessarily make sense. Sometimes the best ones didn't. They were a diversion. One day my friend sent me a note that said, "            [a bright but obnoxious classmate] colors her hair with camel urine." I responded, "Portable playgrounds, mounted on trucks, are the solution to juvenile delinquency in South Boston." I think we ought to be on Judge Coleridge's "National Commission," because minds like ours are "a terrible thing to waste." Further reading. For an extended entry dealing with my revolutionary new, inflatable BurtLaw's Porta-Courthouse and with mobile courthouses, portable playgrounds, portable churches, etc., see, Comment at If you cry out for justice, a judge will appear: bus as mobile courtroom.

 Annals of big-time grand jury investigations: Did judge 'key' neighbor's car? "A Harris County grand jury this week will review whether a state district judge[, Judge Woody Densen, 69 caused nearly $3,000 in damages to his neighbor's Range Rover by scratching the vehicle with a key after a surveillance camera captured his actions on video...." Details (Houston Chronicle 06.16.2009). Update. Grand jury indicts judge, charging him with felony criminal mischief (Houston Chronicle 06.19.2009). Comments. a) I have no knowledge of what the tapes show or whether the good judge did anything wrong. Even if he were to be found to have done what the neighbors suspect, i) I wouldn't rank it as being as serious an offense as, say, drunk driving, which endangers the lives of innocent people, and ii) I wouldn't be among those demanding his resignation or removal. But that's just me -- I'm a softie. Want proof I'm a softie? Here's a link to a campaign position paper on Crime and Punishment I posted on my campaign website in my 2004 anti-Iraq-war campaign against entrenched incumbent Republican Congressman Jim Ramstad. If you're a Minnesotan, call me an "RFLer," if you want -- Republican Farmer-Laborite." b) This posting, BTW, is yet another example of what I've said before, to wit, that the day will come when everything we do -- and I mean everything -- will be caught on tape. Are you a judicial secretary who projects an image of being an innocent woman who would never be caught doing anything bad and one long judicial lunch hour on a steamy July day you ride the zip rail and meet up at a hot-sheet motel with the Clint-Eastwood-lookalike judge you've swooned over since the day he hired you? -- I assure you, it'll be caught on tape. But don't let me spoil it for you -- go ahead and "Enjoy!"

 War Crimes Court's ex-spokeswoman is on trial for leaking secrets. "[Florence Hartmann, a] former spokeswoman accused of revealing top secret details implicating Serbia in genocide[,] faces up to seven years' jail after being put on trial yesterday at the Yugoslav war crimes tribunal...." She's charged with criminal contempt of court. Details (UK Times 06.16.2009).

 On sentencing a convicted fella to write a book. Federal District Court Judge Ricardo Urbina (D.C.), employing a sentencing option he's used before, sentenced a white collar defendant convicted of the crime of making a false statement to the feds to write a confessional/didactic book about it all. The NYT's response? "Given the vanity in publication, it might be better if he ordered white-collar defendants not to write books about what they did. Now that would sting." Editorial (NYT 06.16.2009). Comment. As regular readers of this blog know, I'm not a fan of the "crime" of false statement. False statement is one of the nebulous catch-all easy-to-convict charges federal prosecutors use against Martha Stewart and Scooter Libby and others after they've spent years and millions of taxpayer dollars to investigate an allegation (or no allegation at all) and come up with, basically, nothing. This is, after all, not really a Government by Judiciary but a Government by Prosecution. For a brief statement by my law school classmate, Harvey Silverglate, the noted Boston civil libertarian, see, this blog entry, Most Pernicious Statute, at Dynamist Blog. See, also, Alex Berenson, Ideas & Trends (NYT 03.07.2004). BTW, I am now reading a pre-publication review copy of Silverglate's latest book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books) (publication date September 2009), and I intend to post a review of it later this summer.

 Blogging from a show trial in federal district court in Minnesota. "Jammie Thomas-Rasset's file-sharing retrial opened this morning in Minneapolis, and a complete jury has already been selected. There's not a single file-swapper among them...." Blogger Nate Anderson, of Ars Technica, is reporting from Minneapolis. Jury selected in Thomas retrial: shockingly law-abiding (Ars Technica 06.15.2009). Comment. My view? For God sakes, the RIAA (recording industry)
ought to leave the poor woman alone. One commentator, Brad Templeton of the Electronic Freedom Foundation (a terrific organization), has referred to the RIAA's suit filing against people like Jammie Thomas-Rasset as Spamigation (BradIdeas 04.22.2004). My opinion is a practical one: I think suits like this do the recording industry (and the legal profession and the courts) more harm than good. I think they're sort of the civil equivalent of the feds prosecuting people for false statements. See, On sentencing a convicted fella to write a book. Further reading. RIAA v. The People and RIAA v. The People -- Five Years Later (EFF). Update. Jury says woman must pay $1.92 million; what are her options? (Nate Anderson at Ars Technica 06.21.2009). Comment. Is this America or am I living in a dream?

Quote of the day. "The extraordinary influence of the bar is a hallmark of the judicial selection method used by more than two dozen states [including Tennessee]...The Tennessee plan that was supposed to prevent the tawdry appearance of litigants and special interests involved in electing judges instead ended up with them selecting the judges behind closed doors. The state's reforms will open the commission's meetings to the public and are a good first step toward bringing transparency and accountability to those judging the judges...." More (WSJ 06.15.2009) (emphasis supplied). Comment. What should be the next step? I recommend that a) the good folks of Tennessee scrap its commission plan and the fake one-candidate "retention elections" and go back to the "plan" mandated by Tennessee's constitution, real, contested judicial elections, and b) the good populist voters of Minnesota not be seduced by the siren call of the well-financed, self-styled "reformers" (and "scariners") to give up their historic right to participate in judicial selection through real elections. Further reading. Some of our resources and background briefings for voters on this well-financed Minnesota campaign, which I've opposed from the outset, are linked to at The campaign to deprive MN voters of a role in judicial selection.

 Those Alabama decisions. Andrew Kreig, Alabama Decisions Illustrate Abuse of Judicial Power (Slate 06.11.2009).

 May a judge decide who controls the legislature? "Control over the state Senate was left uncertain Monday after a judge ordered warring Democrats and Republicans back to the table to try to reach an agreement. State Supreme Court Justice Thomas McNamara declined to immediate decide whether the June 8 coup that shifted control of the Senate to Republicans was legal...." Detailed story (N.Y. Daily News 06.15.2009). Comment. Minnesota experienced a somewhat analogous battle in the court for control of the Minnesota Senate at the start of the 1971 session. That battle is recounted in Two Secretaries of the Senate, in 1971 (Minn. Legislative Reference Library 01.12.2009). SCOMN's decision in that battle is State ex rel. Palmer v. Perpich, 289 Minn. 149, 182 N.W.2d 182 (Minn. filed 01.13.1971) (per curiam). I was a personal law clerk for one of the seven justices that term, a great man who was one of the main mentors in my life, the late C. Donald Peterson.

 Out-of-town D.A. drops charge that local judge dropped his pants. A prosecutor from another county has terminated the indecent exposure prosecution of Tulsa County District Court Judge Jesse Harris. Two women had alleged Harris exposed his genitals in a hotel parking lot in Tulsa, an allegation Judge Harris has stoutly denied. More (Tulsa World 06.15.2009). Comment. I filed the following posting when the criminal charges were filed against Judge Harris: More charges of excessive judicial 'transparency' in OK. As you'll note if you read the posting, from the outset I presumed that Judge Harris, like any other criminal defendant, was innocent.

 Headline-of-the-Day: 'Wrongly imprisoned man won't shut up about it.' Actually, this headline is from 2005. Story (The Onion 08.31.2005).

 ACLU is investigating routine border searches of laptops of international travelers. From an ACLU press release (06.10.2009):

United States Customs and Border Protection (CBP) policy permits officials to search the laptops and other electronic devices of travelers without suspicion of wrongdoing, according to a Freedom of Information Act (FOIA) request filed today by the American Civil Liberties Union. The ACLU filed the FOIA request with CBP, a component of the Department of Homeland Security (DHS), to learn how CBP's suspicionless search policy, first made public in July 2008, is impacting the constitutional rights of international travelers. 'Based on current CBP policy, we have reason to believe innumerable international travelers -- including U.S. citizens -- have their most personal information searched by government officials and retained by the government indefinitely,' said Larry Schwartztol, staff attorney with the ACLU National Security Project. 'The disclosure of these records is necessary to better understand the extent to which U.S. border and customs officials may be violating the Constitution.'

Comment. I hope the ACLU takes on the CBP on this and prevails. The CBP's policy is outrageous and inconsistent with American ideals.

 Annals of bias in judicial appointments. "Judge Sotomayor's nomination to the Supreme Court has instigated a lot of conversation about the demographics of judicial nominees -- males versus females, Hispanics versus non-Hispanics, Protestants versus Catholics. However, I think that it should inspire a conversation about the serious bias that exists in judical appointments, both locally and nationally, which has had a devastating impact on the quality of justice over the last 20 to 30 years. That bias is the fact that criminal defense attorneys don't get nominated to the bench...." D. Parker, The real bias in judicial appointments (Daily Kos 06.13.2009). Comments. The commentator refers to the bias against criminal defense attorneys as "the" serious bias that exists in judicial appointments. Actually, it's just one of several. a) I agree that it is a serious bias and I made the point in this 2007 posting:

 Wanna be a judge? Become a prosecutor first, not a public defender. "Former Republican Gov. Bill Owens appointed more judges in his two terms in office than any other governor in Colorado's history. Owens' 174 appointments, from County Court judge up to Supreme Court justice, outnumbered both governors before him combined: Roy Romer appointed 114 and Dick Lamm named 59. Each served three terms...Almost half of Owens' judges were prosecutors or former prosecutors...[A]t least 72 had served multiple years as prosecutors. In that same period, Owens appointed only four judges with public defender experience...." More (Colorado Springs Gazette 09.09.2007). Comment. This is not just a Colorado phenomenon. As we've remarked before, in this age of politicians winning votes by cheap "tough on crime" posturing, it makes political sense -- and makes for bad government -- to unfairly favor prosecution experience over other experience in judicial appointments. This is yet another reason we prefer the Minnesota Plan of judicial selection: lawyers who are unfairly excluded for this or that reason are free to challenge sitting judges when their terms are up. Not surprisingly, voters, at least in Minnesota, have not proven to be ideologically-driven or anti-incumbent in their picks, proving once again Thomas Jefferson's faith in ordinary voters. TJ said, "If you state a moral case to a plowman and a professor [or a prosecutor or governor or judge], the farmer will decide it as well, and often better, because he has not been led astray by any artificial rules" -- or led astray by a desire for personal aggrandizement.

 b) The bias in favor of youth in judicial appointments. Equally as distressing to me is the bias in favor of youth in judicial appointments. It used to be that age & experience were qualifiers in appointments to the U.S. Supreme Court. Now they are disqualifiers. Nixon figured it out (as others after him have) that it makes political sense to appoint young conservative judges, in their 40's, to the Court so that, with their lifetime tenure, the President's influence on the Court could continue for many more years. Justice Holmes was 60 -- i.e., "over the hill" by today's judicial appointment standards -- when President Theodore Roosevelt appointed him to the United States Supreme Court. But, as Judge Richard Posner says, "Holmes performed with great distinction for almost 30 years. Moreover, some of his greatest opinions -- without which our legal history would be a lesser treasure -- were written when Holmes was well past the age when most states, including Minnesota, mandate a judge's retirement. For a detailed exposition of the many reasons I oppose mandatory retirement of judges here in Minnesota and elsewhere -- including that it puts a premium on youth over experience in judicial appointments, with the result that wise and experienced 60-year-old men and women are rarely appointed to serve on state supreme courts anymore -- see, my essay, BurtLaw on Mandatory Retirement of Judges. (Note. If you want to read the essay as it appeared as a position paper on my personal campaign weblog in my 2000 general election campaign for Chief Justice of SCOMN, you will find it here in a special appendix to TheDailyJudge.Com.)

 Judge who has promoted recycling, cleaning up dumps is cited for illegal burning. Actually the "judge" in question, Sandy Watkins, is a so-called "judge-executive" in the environs of Henderson County, KY. The judge is quoted saying he didn't burn anything illegally but "just had some material in there that didn't belong" with the vegetative material, burning of which is permitted. Nothing intentional, nothing that hasn't already been cleared/cleaned up, which is all the citation required. Moreover, he added, "I've done more to clean this county up than 15 county judges." Detailed story at County judge cited for burning trash (Gleaner News from Evansville Courier-Press 06.12.2009). Comments. a) The fact that "the judge" got cited for a violation in my opinion shouldn't in any way detract from the judge's accomplishments as an environmentalist. b) Can you guess the name of the state's environmental inspector/complainer? Ashley R. Crabtree! Methinks the name in some way may have predestined Ashley for Crabbing (complaining) about the way people treat the soil, the rivers and lakes, the trees, etc.

 'Highly, highly sensitive' probe of high court judge's 'mysterious death' is underway. "Two of the Western Cape's top detectives are heading the investigation into the mysterious death of Acting Cape High Court Judge Patrick Maqubela...Police initially insisted that Judge Maqubela had died of a heart attack and opened an inquest docket, but later changed it to a murder docket...." The judge, who resided elsewhere, was living in a "flat" in Cape Town while "acting" on the high court bench. He didn't show up for work Friday. His body was found Sunday. Detailed story (Independent - South Africa 06.13.2009). Comment. Just guessing, but I wouldn't be surprised if the judge's death was eventually determined to be non-homicidal.

 Did judge yell at staff, make sexist/rude remarks to clerks, boast about his status, retaliate? Those are the conclusions of an investigator hired by the City of Federal Way to investigate a court clerk's allegation of a hostile work environment created by Federal Way Municipal Court Judge Michael Morgan, age 50. The judge, who says his credibility was tested by a polygraph examination, is calling much of the info in the report as "false and misleading." SCOWASH ordered the release of the investigator's report to the press, which Judge Morgan sued to prevent. Among other things, the judge reportedly referred to himself as "king," referred to clerks as "nobodies" who "don't matter." Detailed story (News-Tribune 06.13.2009). Link to report. Earlier. Judge is reprimanded for cussing in court. "Federal Way Municipal Court Judge Michael Morgan was reprimanded Friday by a state panel for swearing at the city's police chief, making threatening comments to court employees and discussing matters of a sexual nature with his staff...." More (Tacoma News-Tribune 12.06.2008). Comments. a) Judge Morgan's salary is $134,623 a year. Thanks to true judicial elections, which I support, the voters will get to chose among the good judge and five others who are running against him in the primary. If they want to retain him, fine. But their choice is not simply retain or not retain, which is the only choice they'd get if the opponents of judicial elections got there way; no, they also get to decide who his successor should be if they do not want him to continue as judge. b) I'm not sure what the deal is with the judges in Federal Way but Judge Morgan is not the first of the city's "judicial newsmakers." See, Ex-judge (Federal Way Municipal Court Judge Colleen Hartl) is censured for fling with public defender (The Daily Judge 08.02.2008).

 'Bureau' files complaint with conduct commission against high-profile judge. "The Georgia Bureau of Investigation's director has filed a judicial complaint against high-profile Superior Court Judge Kristina Cook Connelly. The unusual complaint alleges Connelly violated judicial ethics by repeatedly cursing at law enforcement officers over their handling of a drug investigation...." Detailed story (AJC 06.14.2009). Comment. The judge, who "recently [re-]married and changed her name to Kristina Cook Graham," is the daughter of "famed" Summerville attorney Bobby Lee Cook,  who "is believed to be the inspiration for the television series Matlock." Id. Matlock, in case you've forgotten, is the folksy/crafty Harvard-Law-educated Southern defense attorney played by Andy Griffith. Not that it's relevant to anything, but I've always thought of a Harvard Law classmate of mine, who was raised in the South and returned there after law school to teach law school, as the "Andy Griffith of the Law." Earlier. The judge's former husband, L. Branch Connelly, who was a law partner of her father, died in 2007 of a gunshot wound. See, Small-Firm Partner's Death May Be a Suicide (Fulton County Daily Report via Law.Com 03.08.2007).

 Annals of law and swimsuits - herein of men wearing women's swimsuits and.... "A Sugarcreek Twp. man pleaded not guilty Tuesday, June 9, to five counts of public indecency and three counts of menacing, all misdemeanors, after police say he harassed several people over the span of a week while wearing a women's swimsuit...." Details (Middletown Journal 06.09.2009). Further reading. BurtLaw's Law & Swimsuits (Collector's Edition).

 Latino Yankee Judge. While U.S. Circuit Judge Sonia Sotomayor, the self-labeled "Latina Judge," has been getting all the press attention thanks to the President's nominating her to replace Justice Souter on SCOTUS, a "Latino Yankee Judge" has been quietly going about his duties with comparatively little attention from the press. I refer to a little-known, humble fellow named Mariano Rivera who had the high honor of being selected recently to preside over the first session of a reconstituted court of legend, the "Yankee Kangaroo Court." Summoned as jurors in this historic session were others who, like Judge Rivera, also deserve as much attention as Judge Sotomayor. I refer to Jurors A.J. Burnett, Derek Jeter, and Johnny Damon, one of whom is, I believe, part Latino. The administrator of the newly-reconstituted court, Joe Girardi, is quoted saying that "Mo," as Judge Rivera's colleagues (and rubes like me) affectionately call him, "was quite tough on some people." Details (Newsday via Hartford Courant - Yankees Notebook 05.21.2009). Further reading. Kangaroo court (Wikipedia).

 Female judge is gunned down as she drops her kids off at school. "A top judge[, Aza Gazgireyeva,] has been shot dead in the latest act of violence to shake the Russian republic of Ingushetia...." Details (BBC News 06.10.2009).

 Does 'Three Strikes' apply to judge convicted of third DWI? "A former Muscatine County judge[, James Weaver, of Blue Grass,] has pleaded guilty to his third drunken driving charge." Weaver was a judge in Iowa from 1982 to 2004. The ex-judge's prior DWIs occurred in 2002 and 2004. On each occasion he's pleaded guilty. Details (Chicago Tribune 06.10.2009). Comment. Just to be clear, I don't believe in California-style "three strikes" laws (such laws are one of many reasons California has such serious budgetary problems), and, no, I don't think such laws would apply here. But it's worth pointing out that many states, including Iowa, do subject a DWI offender to much severer punishment for a third such conviction. Elsewhere. Court of appeals upholds retired judge's felony conviction of drunk driving resulting in injury (Metropolitan News-Enterprise 06.23.2009).

 Lawyer admits helping corrupt judges hide income from scheme. "A Hazleton, Pa., lawyer[, Robert J. Powell, 49,] who grew rich paying cash bribes to judges who sent youngsters to his juvenile facility agreed yesterday to plead guilty to two felonies and to relinquish his interest in a yacht and a corporate jet...." Details (Philadelphia Inquirer 06.10.2009). Comment. The two fine judges who have been convicted and sentenced to the clinker as part of the Luzerne County Courthouse corruption scandal are the Honorable Mark A. Ciavarella and Michael J. Conahan.

 The response to SCOTUS' 5-4 decision in Caperton v. A. T. Massey Coal Company. "Lawyers across the country said Tuesday that a Supreme Court ruling on conflicts of interest among elected judges could prompt a deluge of requests for judges to recuse themselves from cases. But judges predicted that few situations would involve conflicts serious enough for the new ruling to apply...." Uncertainty in Law Circles Over New Rules for Judges (NYT 06.10.2009). Earlier. Adam Liptak, Justices Tell Judges Not to Rule on Major Backers (NYT 06.09.2009) ("Elected judges must disqualify themselves from cases involving people who spent exceptionally large sums to put them on the bench, the Supreme Court ruled on Monday in a 5-to-4 decision"). Comments. a) The ruling, of course, really has nothing to say about the merits of the Minnesota Plan, MN's hugely-successful populist-era innovation giving voters -- through real elections -- a say in judicial selection. Notwithstanding that lack of connect, I predict that some members of MN's judicial-legal-political "power elite" will shamelessly try to use SCOTUS decision to slip their "reform" of our great state constitution past the legislators and past the voters. The "reform" they have long been advocating is that we in MN, through a constitutional amendment, adopt the so-called "Ozark State Plan." This great plan of theirs would deprive voters of a say in judicial selection and replace real two-candidate democratic elections with fake Soviet-style one-candidate retention "elections." b) Paradoxically, while the DFL party in Minnesota has long been the party we identify with populism, much of the support for the anti-populist "reform" in MN comes from members of the DFL party -- as well as, of course, from some of those whom I lovingly call "Wayzata Republicans," along with the usual suspects, to wit, bar association types, some (but not all by any means) judges, and outsiders such as hedge-fund billionaire liberal George Soros, who is funding a national effort to deprive voters of a say in judicial selection. I believe the great Floyd Olson, MN's famed populist Farmer-Labor governor (whom Lewis Herfindahl, my maternal grandfather's brother served as "political secretary") would literally roll over in his grave if he knew of this strange alliance. Me? I'm a Party of One, a liberal populist civil libertarian fiscally-prudent anti-war anti-discrimination Republican Farmer-Laborite with a strong skeptical contrarian streak who believes ordinary Minnesota voters are not only all above average but that they are more than capable of participating in judicial selection through contested judicial elections. Indeed, they've proven it for generations and our judiciary is, in point of fact, far, far better than those in states that have adopted the Ozark State Plan. That being so, do you really think it wise or necessary to go that route? Mark my word, if Minnesota does go that sorry route, the day will come.... :-)

 State's outstanding trial judge in 2003 is indicted by the feds. "[E]arly in his law career, [Ralph Cletus] Maricle himself was accused of murder. And once on the bench, he was viewed by some as a judge who was partial to local lawyers and their clients in civil cases. Then in March, a federal grand jury charged the 65-year-old Maricle with being a ringleader in an alleged long-running scheme to fix elections in Clay County...[He's also] accused of scheming to undermine the integrity of the very justice system he was sworn to uphold...." Details (Louisville Courier-Journal 06.08.2009). Comment. Magna cum laude, Order of the Coif, supporter of Clean Gene McCarthy in 1968, Baptist Sunday School teacher, KY's outstanding trial judge in 2003, highly respected.... Even if it weren't for all that (or is it "despite all that"?), we'd be glad to assume he's innocent. You say we're biased in his favor? No, we just take the presumption of innocence seriously. Ever hear of it?

 Judge Bob Moon's not-so-crappy crappie fishing story. A judge named Bob Moon is crappie fishing with a couple friends, one of them another judge, David Bales. A "big fish" (yeah, sure) bites on the lure & pulls a favorite fishing rod in the lake, one Judge Bob's "fisherman's wife" gave him, one with his name engraved on it. Lost forever, right? Oh, dear... But wait! "Jimmy Cross" calls & leaves a message for the "Bob Moon" who "might have lost something." Turns out Jimmy Cross snagged Bob's beloved rod while "dragging a deep-running crank bait [you know what that is, right?] through the area." The news story in the Chattanoogan quotes Judge Bob, who deals with thieves every day, as saying Jimmy Cross "has restored my faith in good people." Full story (Chattanoogan 06.08.2009). Comment. I like to say when a sweet dog pal of mine leaps and catches a flying Frisbee, then returns it to me, "That dog restores my faith in human nature."

 Thibodaux's own SCOLA justice is a best-in-show artist. John Weimer, a justice on the Louisiana Supreme Court is a self-taught painter who's won best-in-show a couple times. His favorite subject? It's "a small white church he found while riding his motorcycle on La. 20 in Chackbay." Full story (Houma Today 06.08.2009).

 Will we soon be holding bake sales to supplement the income of SCOTUS judges? Bernie Becker has a story in today's NYT titled Economic Downturn Didn't Spare Justices' Bottom Lines Either (NYT 06.06.2009). Comment. Read it and weep. The one I feel sorriest for is Justice Clarence Thomas. True, in 2008 he received, in addition to his salary of $208,100, more than $300,000 from the publisher of his memoir (or more than $1 million from the publisher over three years); but, sadly (and I mean that very sincerely), "his reported assets [for 2008] were between $150,000 and $410,000, the same as the previous year." But wait! If Judge Sotomayor were on SCOTUS I'd feel even sorrier (sob, sob) for her. Judge Sotomayor "reported a net worth of just $740,000 this week, with no stocks or bonds and a savings account of $31,985, just marginally more than she owes her dentist and credit card companies" (don't you just love that "just" in the phrase "just $740,000"?). Details Behind Judge's Spending and Income (NYT 06.06.2009). Even sadder, when Judge S.S. retires, after 65, she'll get a yearly pension that only equals her annual salary. Was it Jack Kennedy who said "Life isn't fair"?

 Judge gives up the legal priesthood to work for Catholic Diocese of Pittsburgh. This just in, hot off the wires! "Pennsylvania Superior Court Judge Maureen Lally-Green is retiring from the bench to take a position with the Catholic Diocese of Pittsburgh as director of its newly created Office for Church Relations." Details (Pittsburgh Post-Gazette 06.08.2009). Comment. Given that so many SCOTUS justices are former altar boys, it's perhaps fitting that the Judiciary is giving something back to the Church.

 Tennessee puts issue of abandoning Missouri-style Plan on ice for two years. "One of the most contentious issues before the current session of the Tennessee Legislature is moving toward a temporary -- and compromise -- resolution. The system for selecting the state's top judges and justices effectively will be put on ice for a couple of years...." More (Knoxville News - Editorial 06.08.2009). Comments. a) Without action, the current legislatively-adopted Missouri-style system, substituting one-candidate retention elections for the contested elections contemplated by the Tennessee Constitution, would expire on 07.01. For the next two years the commission will have fewer lawyer members, the commission will have to submit more names to the governor, and -- depending on the final wording -- the governor may be able to ignore the recommendations and "reach down" and pick any lawyer who applied. b) There'a an interesting reader comment on the Knoxville News' website that reflects, I take it, the opinion of some skeptical Tennesseeans: "If you can interpret and negotiate away the people's right to vote you can interpret and negotiate any inalienable right. This is a disgrace...." You know what? I agree.

 Annals of judicial avoidance as a form of judicial decision. The National Post has an interesting story to the effect that Judge Redfield T. Baum, a bankruptcy judge in AZ, would like to avoid deciding the issue between the National Hockey League and Phoenix Coyotes owner Jerry Moyes over whether the NHL can prevent the sale of the team to a Canadian, who apparently has offered to buy the team for $212.5 million (U.S. dollars) conditioned on his being allowed to relocate the Coyotes to southern Ontario, Canada. Detailed story (National Post 06.08.2009). Comment. Ralph Anzivino, a law prof at Marquette U., is quoted in the story saying: "[Judge Baum] doesn't want to make a decision...He knows the whole world -- at least the hockey world, the NBA and everybody else -- is watching this. He wants them to resolve it, and not have to establish a precedent. Because then he's got to do a lot of hard work, he might get appealed or reversed...." Moreover, a judge knows -- as another law prof, Geoffrey Rapp, U. Toledo Law School, puts it -- that "a lot of people are wheeling their briefcases toward the courthouse, they suddenly realize that they don't want a decision to come down from the court that goes against them. And they would rather compromise, somewhat, than take that chance." How does a judge go about getting the parties to deal? Eric Schaffer, a bankruptcy specialist, suggests "the judge [may] give hints to where things might go, to try and make it clear to various parties what they may have at risk, in terms of issues and outcomes." You mean judges actually do that? Update. Judge denies Coyotes sale to Balsillie (Washington Post 06.16.2009).

 Quote of the Day. "Is there a constitutional right to informational privacy? Thirty-two Terms ago, the Supreme Court hinted that there might be and has never said another word about it. See Whalen v. Roe, 429 U.S. 589, 599 (1977) (alluding to 'the individual interest in avoiding disclosure of personal matters'), and Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977) (quoting the above phrase from Whalen). With no Supreme Court guidance except this opaque fragment, the courts of appeals have been left to develop the contours of this free-floating privacy guarantee on their own. It's a bit like building a dinosaur from a jawbone or a skull fragment, and the result looks more like a turducken. We have a grabbag of cases on specific issues, but no theory as to what this right (if it exists) is all about. The result in each case seems to turn more on instinct than on any overarching principle." -- Chief Judge Alex Kozinski, dissenting from denial of en banc reconsideration of Nelson v. NASA, No. 07-56424 (9 Cir. 06.04.2009). Also worth seeing: the concurrence of Judge Kim McLane Wardlaw. Want more on KozyBoy? See, Sir Burton rises to defend Chief Judge Kozinski over porn postings (The Daily Judge 06.12.2008).

 Judge admits she drove while boozy. "Superior Court Judge Christine M. McEvoy admitted today that she drove under the influence of alcohol in April and apologized to family, friends, colleagues, and the 'people of the Commonwealth.'"  Details (Boston Globe 06.05.2009). Earlier. Yet another judge is charged with drunk driving (The Daily Judge 04.17.2009).

 Those strange Brit ways. "'Its a very old system and it's very odd to come here. The sound is bad -- we can't hear the judge or defence -- and the set-up means you can't see the jury. The Old Bailey should be adapted to the modern age,' he said. The court hours in France can start at eight in the morning and last until eight in the evening; at the Old Bailey it is just a five-hour day. And in France, cameras are free to film interviews with trial lawyers in the court buildings and ask them to pass comment on the case and even rate the performance of witnesses...." -- French Journalist Fabien Thelma, quoted in Jeremy Britton, French baffled by 'odd' UK courts (BBC News 06.05.2009).

 Life experiences and judging. "This business of life experience is a curious phenomenon. I wasn't at all happy with the way the Obama administration emphasized Judge Sotomayor's life story. It's an interesting story, to be sure, but it shouldn't be the focus of her nomination to serve on the Supreme Court of the United States. The focus instead should be on her intellectual ability, her judicial philosophy, and the nature and quality of her legal experience. But life experience isn't irrelevant...." Geoffrey R. Stone, Life Experience and Judicial Perspective (Huntington Post 06.04.2009). Further reading. Quote/Misquote of the Day -- herein of the proverbial wise old woman and the wise old man (The Daily Judge 05.15.2009); A farraginous supreme court ("My ideal state or federal 'final' appellate court would involve, as 'Sir T. Browne' (whoever the heck he was) put it, 'A farraginous concurrence of all conditions, tempers, sexes, and ages'").

 Sonia Sotomayor Info. As it did with Roberts, Alito and Meers, the Law Library at the University of Michigan Law School, which is one of the best law schools in the world (a statement that, I assure you, has nothing whatever to do with the fact my daughter graduated from it with honors), is maintaining a web page devoted to information about Judge Sonia Sotomayor, the latest SCOTUS nominee.

 Annals of judicial resignation gamesmanship. When is an unconditional resignation conditional? Well, here's the text of the resignation letter submitted to President Obama by U.S. District Court Judge Samuel Kent, who will soon begin serving a 33 month prison term for obstruction of justice: "I hereby resign from my position as United States District Judge for the Southern District of Texas effective June 1, 2010" (italics in original). It appears Kent is attempting to a) stave off impeachment by resigning but b) continue to get paid for another year by delaying the effectiveness of his resignation until June 1, 2010. His attorney, Dick DeGuerin, "explained" the delayed effective date by saying that if Kent didn't resign it'd take until June 1, 2010, to complete the impeachment process. Details (Houston Chronicle 06.03.2009). Comment. Notwithstanding Judge Kent's resignation, it appears that our super-effective Congress, which doesn't have anything better to do, is going to go ahead with the impeachment process.

 Judge who displayed hangman's noose in his chambers is retiring. "A federal magistrate judge [William Wunderlich] who once displayed a noose in his chambers has retired from his position overseeing the tiny court in Yosemite National Park...." Details (San Jose Mercury-News 06.03.2009).

 Judges decide they're entitled to pay raise as a matter of law. "The Appellate Division, First Department has unanimously ruled in favor of the state's 1,300 judges in their lawsuit against the Legislature over pay raises, upholding a lower court ruling that found the jurists are entitled to 10 years worth of back pay...." Details (Elizabeth Benjamin's The Daily Politics - NYDailyNews 06.02.2009). Comment. Isn't the judicial power something, that judges get to decide they're entitled to ten years' worth of back pay? Call it "the implied appropriations clause" of the constitutional grant of judicial power.

 Quote of the Day. "[J]udges who go to the Supreme Court are elderly gentlemen and ladies, and therefore, we are liable to suffer from various diseases -- rheumatism and so forth. Incidentally, we do not have an automatic recording machine. So we still have to write with the long hand. It is likely that one or two of us may be sick. And if they are sick, you have to adjourn. So personnel  is very a important fact in the administration of justice." -- Justice George Wilson Kanyeihamba, Uganda Supreme Court. From an interview in The Daily Monitor (06.02.2009). Comment. I think if you checked the attendance records of a lot of courts (if attendance records were kept), you might find that a lot of the older judges took fewer sick days than many of the younger ones.

 Judge who was tossed from 'go-go bar' is barred from bench. "The state Supreme Court yesterday ordered that a former Somerset County municipal court judge[, Richard Sasso,] who caused a ruckus at a go-go bar and presided while under the influence of alcohol and painkillers[,] be permanently barred from the bench...." Details (Star-Ledger 06.03.2009). Earlier. Lawyer argues ex-judge facing misconduct hearing is victim of 'witch hunt' (The Daily Judge 11.09.2009). Comment. I haven't heard that expression "go-go bar" since, I think, the 1960's.

 Trapped in the dark in a courthouse elevator! "Two transformers exploded in the Santa Ana Civic Center area this morning, triggering a power outage that trapped two people in elevators and darkened government buildings and residences...." One of the two "trapping" incidents involved a woman in an elevator that was "jammed between the 6th and 7th floors of Orange County Superior Court." Her rescue involved firefighters "us[ing] high-pressure airbags to break open the elevator doors and lower[] a ladder to the woman." Details (LAT 06.02.2009). Earlier. If you are a courthouse elevator aficionado or courthouse elevator fetishist, you may be interested in some of our previous "courthouse elevator postings," links to which may be found at Courthouse elevator falls! (The Daily Judge 07.31.2008).

 Panel recommends removal of judge. "A state panel said Monday a Pulaski County judge [Willard Proctor] should be kicked off the bench for an improper relationship with a defendant and for setting up and running a probation program that handled thousands of dollars collected from people found guilty in his court...." Details (ARK Business 06.01.2009). Earlier. Did God tell judge to create program? (The Daily Judge 04.28.2009).

 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 campaign blog one 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 executed it contemporaneously 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 have reproduced and reposted as near as I can, given software changes, the backed-up 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.

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