The Daily Judge
© 2010 Burton Randall Hanson
      Archives - 11.01.2009 - 12.31.2009
"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."

About links.  a) Links, like judges, eventually retire or expire, some sooner than others. b) Access to all stories via these links is free, at least initially, although some sites require free registration. c) Free access often turns to fee access after a day or a week or some such period. d) Entries, following the typical blog format, are in reverse chronological order.

Complaints? If you feel we have made a factual error or been unfair in expressing our opinion, please contact us (see, infra) and give us an opportunity to correct the perceived wrong.

 Want to contact us? Send an e-mail addressed to "BurtLaw" at "The Daily Judge.Com" (we have deliberately not put the address in typical e-mail form, e.g., ABC@TheDailyClog.Com, because when one does so, the automated web-trollers used by spammers add such e-mail addresses to their lists). We trust you are smart enough to put "BurtLaw" together with "@" and "TheDailyJudge.Com," because you wouldn't be interested in this site if you weren't smart.
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"

Some of our current postings. a) My Christmas gift to loyal readers of The Daily Judge. b) When a supreme court acts in a lawless manner -- the Minnesota example. c) Sandra Day O'C is embarrassed by democracy, thinks voters are ignorant. d) Judging porn lovers, some of whom are judges. e) Judge gets jail term for misdemeanor official oppression; says he'll appeal. f) Appeals court upholds ruling in Polanski case. g) 'SOJ' (son of a judge) gets a year in jail for having sex with drunk minor. h) Another judge is 'off to the clinker.' i) FLA ethics purists say judges can't have 'friends.' j) Lawyer retracts her claim that judge masturbated while mediating. k) CSI 'banned in Boston'? l) Attorneys say judges' closing of their access to corridor behind courtrooms is a hostile act. m) What's behind a courthouse ban on all courthouse displays, religious and secular? n) Did ally of Texas guv say campaign donation was prerequisite for judicial appointment? o) Judge says he could have given Tiger Woods good advice about Swedish women. p) Stolen wreaths -- on sale in courthouse lobby!? q) D.A.'s Wife and the Seven Judges. r) Wisconsin judge, twice rejected by voters, gets nod from Obama. s) Must prosecutor or public defender planning run for judgeship resign? t) When a prominent judge's son kills a prominent surgeon's son. u) Is judging dogs harder than judging cases and controversies? v) Justice Kennedy -- Will he win one of those muzzle-the-press awards? w) Dahlia speaks. x) A heartwarming story about a corrupt courthouse and the Christmas spirit. y) The latest on Sheriff Joe Arpaio. z) Judge is publicly admonished over using judicial office, court resources for personal matters. aa) Feds charge another judge with fraud. bb) Judge is admonished over campaign conduct. cc) Judge dies while snorkeling in Hawaii. dd) SCOWVA's chief justice says he supports continuing electing state's judges. ee) Our kind of judge -- a cheapskate with taxpayer money. ff) Judicial board complains about judge's backlog of cases. gg) Annals of Aussie judges. hh) Annals of judicial humor. ii) They're tearing down our courthouse libraries. jj) Ex-judge hangs self. kk) Prison ombudsperson is charged with possessing prohibited item in a prison facility. ll) Jury says Judge Berry obtained real estate by fraud, sets punitive damages at $180,000. mm) Ex-Jersey judge gets probation for assaulting estranged wife. nn) Stringer, ex-judge, gets probation for role in bank fraud. oo) Staff attorney at state appeals court found 'trafficking' in term papers on the side. pp) Annals of prosecutorial abuses that courts refuse to punish. qq) Panel says another New York village justice should be disciplined. rr) The iTunes court. ss) The Rule of Law Index. tt) Judge who just resigned is charged with misconduct. uu) SCOFLA will publicly reprimand judge for relationship with career criminal. vv) Judge is reprimanded for Facebook, Google activities. ww) Judges are in danger again in Northern Ireland. xx) SCOARK suspends judge for rest of term but says he may run again. yy) Ex-judge is charged with sexual battery. zz) Harvard Law grad is killed in Afghanistan. aaa) SCOTUS hears all about life without parole for teenage criminals. bbb) Judge resigns after controversial year as judge. ccc) Annals of judicial retention elections -- one judge is retained, one is sent home. ddd) The death of a hired man who was everyman's attorney. eee) Ex-judge, acquitted of bribery in '93, denies new charges. fff) KY family court judge is reprimanded and suspended 45 days without salary. ggg) Annals of judicial reconciliation. hhh) Quote of the day: Nino on the mind being a terrible thing to waste on the law. iii) Should county's trial judges be double covered -- by two health benefit plans?

 My Christmas gift to loyal readers of The Daily Judge. Hey, you didn't think I'd buy anything for you, did you? What concern is it of you that I paid no coin for a gift, if the gift could change your life as a lawyer or judge? Here it is: Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897). And, by the way, you moaners and groaners who, to nab and twist a line from e.e.cummings, pay too much attention to the syntax of things, this entire damn blog is a gift, an example of the kind of pro bono publico work that the Pharisees of the profession don't credit because it doesn't fit into one of their silly but neat little categories. Thus, to you moaners and groaners, I say, Where's the damn gratitude, not to mention love? Want more Christmas cheer? Want a good-old-fashioned Christmas story, complete with what I hope is a happy made-for-TV-movie type of ending? Read on...

 Lawyer retracts her claim that judge masturbated while mediating. Back in September the blawgosphere was buzzing over the allegation in a lawsuit filed by a female lawyer in Kansas, Kimberly Ireland, that the judge presiding over her divorce mediation session, Hon. Kevin P. Moriarty, appeared to her to be masturbating and that he used foul language. I was wary of the claim of MWP and posted an item without giving the judge's name: Another claim of MWP (masturbating while presiding) (The Daily Judge 09.29.2009). I commented, "Anyone can file a lawsuit. The claim is just a claim at this point. It has not been proven." In a subsequent posting not in any way specifically related to Ireland's suit or allegation, I alluded, with "tongue partly in cheek" (Oh, dear, is that bad?), to what might be behind at least some of the fairly frequent claims made by women that certain men in positions of authority have harassed them by masturbating in their presence. See, The MWP perception problem and the Super-Privacy Robe solution, where I stated in part:

I know and you know that normal All-American male judges do not play -- at least in public -- what has long been euphemistically referred to in small towns in the Middle West as 'pocket pool.'  But many men, including male judges -- particularly those who are tall and monkey-like and therefore long-armed and don't know what to do with their hands -- long ago as kids developed the nervous habit of putting their hands in their front pants pockets. Some don't just do that but also allow their hands to play, innocently enough, with the contents of those pockets -- coins, wallets, keys, etc. Sadly, some women with too-suspicious imaginations (and perhaps even some who consciously or unconsciously resent or envy men in the way that Freud theorized they do) perceive and firmly believe that men who are engaging in this innocent pastime are instead playing "pocket pool" or engaging in other sexually-suggestive or harassing activity.

We now learn that Ms. Ireland has retracted her claim. Here's a statement her attorney released:

On Tuesday, December 15, 2009, Kimberly J. Ireland dismissed her federal court action and publicly apologized to Johnson County Judge Kevin Moriarty, his family and other Johnson County District Court personnel for alleging wrongful conduct that she mistakenly believed took place in the midst of her highly contentious divorce action. The divorce action, still pending after two years, has caused Ms. Ireland to suffer heart ailments and extreme anxiety. After further reflection, Ms. Ireland believes her perceptions regarding Judge Moriarty's conduct and the conduct of other court personnel involved in her divorce action were the product of extreme stress, and she has now determined that her claims were untrue.

Kashmir Hill, Judge Kevin Moriarty Did Not Beat the Honorable Gavel (Above the Law 12.16.2009). Listen carefully and you may hear the voice of Tiny Tim, expostulating, "God bless us everyone, and Merry Christmas," or words to that effect as he reads this blah-blah-blawg post in the ethereal blah-blah-blawgosphere.

 When a supreme court acts in a lawless manner -- the Minnesota example. I'm sorry to report that four of the members of SCOMN have done what Kipling warned those who would be "men" against doing, failing to keep their heads while -- in these difficult economic times -- "all about are losing theirs."

What happened, in case you haven't heard, is that those who have the power to tax and the power to appropriate, the legislators in cooperation with the executive, were talking about cutting back the appropriations for public defenders. Providing adequate representation for those charged with crimes who cannot afford it, of course, is a general obligation shared by all of us who are part of the public. That is why we refer to public defenders as "public" defenders. Understandably fearful of the staffing consequences of the contemplated cuts, the public defender folks -- whose work I have long admired, admired as generally exceeding in quality the representation provided by many of the self-employed criminal defense attorneys whose services are advertised in the classified telephone directories -- petitioned SCOMN to increase the annual registration fees attorneys in Minnesota must pay in an amount sufficient to cover the shortfall contemplated by the proposed budget cuts. Similarly, the legal services folks, who help provide civil legal services to people who can't afford them (these days, there are a lot of middle class people who can't afford our over-priced, over-hyped, over-intrusive, over-litigated justice system), asked for an increase in fees.

One can disagree over what the proper legislative appropriations should be for general public obligations such as these and over the legislatively-enacted taxes necessary to meet these general obligations. In other states legislators from time to time have been accused of not providing the funds public defenders feel they need to do an adequate job, and sometimes in those states litigation has resulted, with the courts being called on to decide, in an adversary "case and controversy" setting, whether the money appropriated was enough to ensure that the state's general obligations to provide adequate representation under the state and federal consitutions were being met. But this matter in Minnesota is different. In this instance, the court was not asked to decide a case or controversy raising such an issue in a traditional adversary setting. Instead, it was asked in effect to act in a legislative way and tax attorneys in an amount sufficient to make up the proposed cuts. Trouble is, under the state constitution the court doesn't have the power to tax, and the legislature cannot delegate that power to the court, as by expressly authorizing the court to tax. Moreover, not even the legislature has the power to single out lawyers and make them pay for the costs of running the public defender system.

How get around these nasty little niceties? Sadly, the court, in a 4-3 legislative order -- not an opinion in a litigated case or controversy -- resorted to end-justifies-the-means "word games," and simply called what clearly is a "tax" something else. That magical something else? A "fee"! Shades of the "judicial rulings" and "royal orders" in the Alice in Wonderland stories. Although I have no idea whether he'd have joined the "yeas" or the "nays" in this legislative order, I can't help wishing that, to paraphrase Wordsworth, Justice Yetka, were still on the court at this hour:

One of the traits for which I long admired Justice Yetka was his ability and courage to pierce all the rhetoric of the law and to see things as they are -- his ability to do as Justice Holmes directed, "Think things, not words." One area of law in which he did this was in the area of taxation. Among the tax cases he decided, the one that comes most to mind is his brilliant dissent in AFSCME Councils 6, 14, 65 and 96 v. Sundquist, 338 NW 2d 560 (Minn. 1983). In that case, the adversarially-litigated issue was whether an act by the legislature during an earlier budgetary emergency --  specifically, a provision withholding 2% of the gross pay of state employees, with the money to help fund the state's general obligations -- was a "tax" that violated the state uniformity clause, Minn. Const. art. X, § 1, and an unconstitutional impairment of contract, Minn. Const. art. I, § 11. Concluding in dissent that it was a tax, Justice Yetka wrote in part:

Nearly a year ago, in my dissent in In re U.S. Steel Corporation v. State of Minnesota, 324 N.W.2d 638 (1982), I wrote:

We all must remember that our constitutions -- both state and federal -- were intended to protect not only one citizen from another, but also to protect all citizens from oppressive acts of the government. If the legislature can strike an illegal blow at the mighty and be permitted to get away with it, it can more easily strike again at those least able to respond. I think there is a point at which to call a halt to such activity, and this is a good opportunity.

Id. at 647 (Yetka, J., dissenting). Here, public employees are the victims of an illegal act of the legislature less than a year later!

I surely agree that we must give great deference to a legislative act, but the constitution was written for the courts to interpret. We must not allow the constitutional language to be an illusionary protection only. To uphold the authority of the legislature to levy a tax on public employees, while excluding the general public, and unilaterally to deprive state employees of their contractual rights without sufficient justification constitute an abdication of this court's responsibility to ensure that Minnesota citizens are protected from arbitrary and discriminatory legislative action.

We have previously addressed what constitutes a tax. "Taxes are pecuniary charges imposed by the legislative power to raise money for public purposes -- a burden imposed to supply the very lifeblood of the state." [Citations and rest of paragraph omitted.]

The 2% withholding provision is a tax. It is an enforced contribution, exacted pursuant to legislative authority, and collected from public employees to address the general budget crisis facing the state. The form of the payment is not as important as is its substance. State employees are forced to pay 2% of their gross income to the state while non-public employees are not.

The majority and the district court emphasize several characteristics of the form and nature of the contribution and conclude that it is not, in fact, a tax. They stress that each contribution is credited to an individual account, that the money is refunded if the employee leaves public service (though only prior to vesting), and that the contribution is recouped in the form of 579 retirement benefits. These justifications are either erroneous or irrelevant. Retirement benefits were not increased. The end benefits remained the same after the contribution as they did without it. Thus, the finding of the district court that the contribution inures to the benefit of the employee is clearly erroneous. While it is true that a favorable IRS ruling allowing an employee to deduct the state tax from the gross income is beneficial, some funds already had such a privilege prior to the passage of the new tax.

Further, the claim that the contribution is necessary to ensure the integrity of the pension fund and, therefore, of direct benefit to the employees is not persuasive. There is no evidence in the record that, prior to the contribution, the fund was in a less-than-adequate financial position...To the extent that the fund is compromised, it is the result of the companion decrease in the state's contributions to the fund. The legislature enacted both provisions in the same bill to combat the same problem -- the state's budget crisis. One cannot be reviewed without consideration of the other.

In light of our obligation to review statutes as a whole and to pierce form to evaluate the substance of legislation, I can only conclude that state employees received no greater benefit than did the public at large from the pension fund contributions. If all taxpayers were required to contribute an extra 2% of their income to the state coffers, no one would dispute that the contribution would constitute a tax. If a bird looks like a duck, quacks like a duck, and walks like a duck, it is most likely a duck. Likewise, if an act looks like a tax, raises revenue like a tax, and is mandatory like a tax, it is a tax.

While Justice Yetka is no longer on the court, his independent-thinking successor, Justice Page, is. During this season of thankfulness, we are thankful that Justice Page and two other Viking defenders of our state constitution had the courage and wisdom to conclude that this tax -- which "looks like a tax, raises revenue like a tax, and is mandatory like a tax" --  is a tax and that since only the legislature may enact a tax, the court's order therefore is illegal and unconstitutional. Further reading. Compare and contrast, N.C. judge upholds First Amendment challenge to requirement attorneys pay $50 'fee' to provide campaign funding for candidates for judicial elections (NCICL 08.11.2009), Ruling (PDF). We note that in Colorado a "Clear the Bench" campaign has been launched to urge voters to vote no to retaining Colorado Supreme Court justices because of a decision by SCOCO holding that certain "fees" enacted by the legislature are not "taxes." See, Let's Clear The Bench, Colorado!

 Sandra Day O'C is embarrassed by democracy, thinks voters are ignorant. "A group of judges, political officials and lawyers, led by the retired Supreme Court Justice Sandra Day O'Connor, has begun a campaign to persuade states to choose judges on the basis of merit, rather than their ability to win an election...." John Schwartz, Effort Begun to End Voting for Judges (NYT 12.24.2009). Related: Matthew J. Franck, Too much democracy for Justice O'Connor (National Review 12.24.2009). Comment. This is funny, because -- as readers of this blog know -- Sandra Day O'C has been "beginning" and "launching" campaigns to deprive voters of a role in state judicial selection for several years now, ever since she retired from SCOTUS and found herself with too much time on her hands. Justice O'Connor says Minnesota should emulate Arizona; O'Connor says voters a) are ignorant, and b) shouldn't be allowed to pick judges; O'Connor suggests a) video games may help promote/protect judicial independence and b) if judges don't get that big pay raise they want, they might stop being independent; A judge responds to O'Connor's 'hyperbole';
Want more patronizing talk about O'Connor's 'ignorant' citizenry? The ex-judge's latest intitiative is called the "O'Connor Judicial Selection Initiative" and "it" was "announced this month by the "Institute for the Advancement of the American Legal System" [pretty impressive title] at the University of Denver. Her work "will include traveling from state to state, by invitation, to work with lawmakers, policy makers and advocates to build support for selection systems through public education, legislative counsel and political campaigns." That, of course, is what she's been doing. Not sure whose bucks are behind this latest new initiative, although I wouldn't be surprised to find that George Soros, -- billionaire hedge-fund investor and promoter/financier of trendy pseudo-liberal causes favored by certain members of the power elite, who has helped fund "Justice at Stake" groups advancing the same initiative in various states -- is lending a helping hand. What's so odd to me about this initiative is the contempt that some of its so-called "liberal" backers show for the intelligence of voters. I'm a proudly "liberal" Republican -- hey, there aren't too many of us left -- but I come out of a great, great Minnesota prairie populist background and, like Jefferson, I trust the voters far, far more than I trust the members of the power elite. Want proof that voters can be trusted? Just look at Minnesota's above-average state judiciary, historically and even currently far better than that of Missouri, with its Ozark State (or Missouri, if you will) judicial selection plan, its screening panel controlled by lawyers, judges and other politicians, and its fake one-candidate Soviet-style retention "elections," a plan that not surprisingly is much beloved by pseudo-liberal college political science profs...and Sandra Day O'C. The NYT piece I linked to ends with what Sandra Day O'C apparently believes is her trump card: she says that at all the "international legal conferences" she attends, "'they're all amazed'" that in the American federalist system, many states allow for a voter role in judicial selection. According to Sandra Day O'C, these international experts "say, 'How can that be?'" Perhaps the answer is the answer Louis Armstrong reportedly gave when someone asked, "What is 'jazz'?" The answer, "If you have to ask, you'll never know." My answer? "I guess we're just not as advanced here in America as those Europeans and Africans and Asians Sandra Day O'C consorts with. Show us, Sandra, please, please show us the way....We need guidance from you and your international experts...." Further reading. Dan Pero, Chief Justice Magnuson's insulting statements about the capacity of MN voters (American Courthouse); Why SCOMN's new chief should listen to SCOWIS's more experienced chief; Justice urges preemptive strike against weapons of incumbent destruction; On politicians and the 'playing of cards'; Strib urges longer terms for judges, no role for voters in their selection; The Return of the Ancient Mariner -- or is it Minnesota Scariner?

 Judging porn lovers, some of whom are judges. "Federal judges are asking the U.S. Sentencing Commission to give them more flexibility in imposing penalties on people for possession of child pornography, saying the recommended punishments are excessive in some cases...." Jacob Sullum, Dirty Old Men and Judicial Deviation (Reason 12.23.2009). Comment. Sullum writes that he's "not convinced that mere possession of child pornography (as opposed to production of it, which involves the sexual abuse of children) should be a crime to begin with, let alone a felony." I've advanced similarly soft-hearted propositions in earlier postings. See, e.g., 'Is the fellow who did that fit to be a judge'; My eccentric views on putting a scarlet letter on judges who view porn; Call someone a 'witch' and it's easy to dispose of him ("A prediction: the day will come when we will look back on the current hysterical approach to those who commit sex crimes in the same way we react when reading Hawthorne's The Scarlet Letter").

 Judge gets jail term for misdemeanor official oppression; says he'll appeal. The judge in question is County Court-at-Law Judge Donald Jackson, who was convicted on the basis of evidence he offered to help a woman charged in his court with DWI in exchange for her agreeing to have a relationship with him. Brian Rogers, Woman in Jackson case wants apology from judge (Houston Chronicle 12.22.2009).

 Appeals court upholds ruling in Polanski case. An intermediate appeals court in CA has ruled that a trial court didn't abuse its discretion in relying on film director Roman Polanski's status as a fugitive from justice in refusing to consider his request for a dismissal of the long-standing statutory rape charge that has been pending against him since he fled to France while free pending sentencing. Details (NYT 12.22.2009).

 'SOJ' (son of a judge) gets a year in jail for having sex with drunk minor. "The...son of a Churchill County judge was sentenced Tuesday to the maximum term of one year in jail for having sex with a severely intoxicated 15-year-old girl at a teen drinking party hosted by a Fallon high school softball coach, who was also prosecuted in the case...." More (Reno Gazette-Journal 12.22.2009). Comment. Because he was allowed to plead guilty to a gross misdemeanor rather than the felony with which he was originally charged, the boy, who was 18 at the time of the conduct in question, under state law couldn't get more than a jail term and won't have to register as a sex offender. The authorities are still investigating whether other boys also took advantage of the girl in question.

 Another judge is 'off to the clinker.' "Former state Supreme Court Justice Thomas J. Spargo was sentenced to more than two years in federal prison Monday for trying to extort money from attorneys with cases before him...." More (Troy Record 12.22.2009).

 FLA ethics purists say judges can't have 'friends.' A majority of the members of FLA's Judicial Ethics Advisory Committee has issued an advisory opinion, not exactly of legal force, telling the state's judges not to 'friend' -- which is what I'm told people do on Facebook -- any attorneys who appear in court before them. Why? Well, you know, to do so  would create the appearance of blah, blah, blah. More (NYT 12.11.2009). Comment. A minority on the panel believes that being a Facebook 'friend' doesn't mean one really is a friend. Which in a way echoes what I've come to believe, namely, that there really isn't such a thing as a true blue friend anymore, that friendship, like love, is a myth or, as Minnesota's own Max Shulman (1919-1988) put it in a memorable 1951 story, a fallacy. Being a Facebook 'friend' is sort of like being a "member of the court family," a phrase you might hear appellate judges say at retirement parties for fellow judges and other court workers they're deep down glad to be rid of, as in "You'll always be a member of the court family." Bah, humbug! What they really ought to make express is the implied qualification that "Of course, the whole notion of a court family is utter baloney."

 CSI 'banned in Boston'? In a 2007 retrial of a defendant on murder charges, the defense attempted to show that the police didn't adequately investigate scenarios that might have exonerated the defendant. On appeal to the Massachusetts Supreme Judicial Court from conviction, the defense is arguing that the trial judge, Hiller B. Zobel, prejudicially erred in saying, "And I remind you that this is real life and not CSI. I say that without being facetious. It's been observed across the country that people who've watched that particular program and similar programs tend to think that life is all that sort of science fiction and it's not.'' During oral arguments, the C.J., Margaret H. Marshall, expressed frustration that this issue keeps popping up in trials and on appeal and said, "We should just keep television out of criminal trials." More (Boston Globe 12.10.2009). Comment. And how would the Chief propose doing that? What exactly would her "rule" say?

 Attorneys: judges' closing of access to corridor is a hostile act. "A letter from 30 attorneys says a recent move by General Sessions Court and City Court judges to close off a hallway near their offices is 'an insult' to attorneys who have long had access to the hallway...." The attorneys contend they need access to the corridor if they're going to do their jobs efficiently and they maintain the closing of it is the culmination of a trend by judges and others in the court system to treat the attorneys with contempt. More (Chattanoogan 12.10.2009). Comment. A Minnesota lawyer of Swedish extraction who doesn't think before he speaks, says: "I don't know about you, but the day that I as an attorney can't gain access to the local courthouse without standing in line with the hoi polloi Norwegians being screened for this or that, the day that I can't prowl around nooks and crannies of the People's Building, the day that I can't walk up and down the corridor connecting judges' chambers with each other and with their courtrooms and enter any of them on a whim...well, that's the day I'll spit out my chewing tobacco and throw in a couple of the thousand or so old terry-cloth golf bag towels embossed with the firm's intials that I've squirreled away in my 76 years of devoted service to Minnesnowta, Justice."

 What's behind ban on all courthouse displays, religious and secular? "A Christmas tree, nativity scene and menorah are not the only items some citizens want displayed at Loudoun County's courthouse grounds this holiday season. According to documents obtained by the Loudoun Independent, among the other display requests the county has received lately include a poster mocking the federal government and a banner proclaiming there is no God or heaven...." More (Loudon Independent - VA 12.10.2009). Earlier. New policy bans all decorations on courthouse lawn (Washington Post 11.30.2009). Comment. The public uproar over the ban led to the county board's reversing itself and opening the grounds to all displays, but another meeting is scheduled on the issue. I doubt I'll do a followup posting.... Instead, with the "Swish" sound in my imagination of hundreds of thousands of Hollywood dollars being instantly wire-transferred to my bank account, I think I'll do a fact-based fictionalized "treatment" or proposal for a screenplay for an instant-classic perenially-money-making "Christmas movie" in which a multi-ethnic group of Minnesotans get their dander up and, working together, take over the local courthouse and "save" not only Christmas but all the other Winter Solstice-connected festivals, including Festivus, Hannukah, Kwanza, 50%-off-ivus, Nothingness Day, etc., from the political elite whose poll-takers and legal advisers misled them into thinking people wanted to ban everything, including voter participation in judicial selection.

 Did ally of guv say campaign donation was prereq for judicial appointment? "When Corpus Christi Judge Rose Vela was looking for an appointment to the Texas Supreme Court, her husband turned to a longtime friend and ally of Gov. Rick Perry -- Cameron County Judge Carlos Cascos...Vela said...Cascos told the governor some campaign money in order for his wife to even be considered for the appointment...." More (Houston Chronicle 12.09.2009). Comment. If true, I'm shocked. I had no idea that politics played any role in judicial appointments  -- in Texas or elsewhere.

 Judge says he could've given Tiger good advice about Swede women. U.S. District Judge James Robertson, at a portrait-hanging ceremony in federal courthouse in D.C.: "I could have told Tiger something. You just don't mess around when your wife is Swedish." The Reliable Source (Washington Post 12.10.2009). Comments. a) Hey, judge, Swedish women (and those who are part Swedish) have been known to mess around. Hey, even Swede judges have been known to mess around. 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 historic 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"). b) Justice Holmes -- or was it a wise old fellow who was one of the fathers of my spirit? -- said if you scratch the surface of a man, you'll find a tiger underneath. Now we know that underneath all the fame, etc., our favorite Tiger is just a man. Who would have thunk? Don't know about you, but I like watching him play golf. The only tourneys I watch are the ones in which he's playing. I'll continue to watch when he plays. It never occurred to me that his personal life was my personal business, anymore than the personal life of, say, Justice Holmes was my business. But if it is my business, I wish Tiger and his family well. Same goes for you and your family and the people you've deluded yourself into thinking are your friends.

 Stolen wreaths -- on sale in courthouse lobby!? Another Christmas story to warm your heart: "A Hillsborough County bailiff unwittingly fenced stolen goods last week when he sold Christmas wreaths for $10 apiece in the lobby of the Superior Courthouse...." The bailiff apparently was trying to help out an elderly woman, who said she'd made the wreaths when in reality they were among 36 stolen from a florist. More (Manchester Union-Leader 12.10.2009). Comment. The good news is that apparently no judges bought any of the stolen wreaths. Good judgment, I'd say. The sheriff says, I think rightly, that it showed poor judgment on the bailiff's part to sell wreaths in the courthouse, stolen or not. Which is what you can say to those courthouse co-workers who hassle you about buying Avon products or the Girl Scout cookies their daughters (hint, hint, their moms) are selling: "You're showing bad judgment...bad, bad judment." I remember once when a little old nun barged into my office at the state capitol and asked me if I had a little change (pronounced "litto change") to help out the poor. I said no and waved her off and out.... Small wonder people have called me a curmudgeon and a misanthrope. :-) BTW, if you want a day-brightener, read the many comments posted by readers of this story at the paper's website.

 D.A.'s Wife and the Seven Judges. "At least seven judges who preside over criminal cases have hired the wife of Dallas County District Attorney Craig Watkins as a political consultant for their 2010 re-election campaigns...." And the judicial conduct commission reprtedly says it's okay. More (Dallas Morning News 11.18.2009).

 Wisconsin judge, twice rejected by voters, gets nod from Obama. "After being twice rejected by Wisconsin voters for a place on the state Supreme Court, [a former Wisconsin judge, Louis Butler,] has instead been nominated by President Obama to a lifetime seat on the federal district court. If he is confirmed, Wisconsin voters will have years to contend with the decisions of a judge they made clear they would rather live without...." More (WSJ 11.19.2009). Comment. In voting for his opponents, the above-average voters of our good neighbor state of Wisconsin didn't establish Mr. Butler's unfitness to hold judicial office, anymore than the voters who rejected Abe Lincoln in some of his campaigns established his unfitness to serve the public. Running multiple times and winning some and losing some is a great American tradition. My grandfather Otto Herfindahl, who was a county commissioner in "Greater Minnesota" for a total of, I think, 12 years, was elected three times and "rejected" either two or three times. Running and losing is a great American tradition. Ask me, I'm proud to be a "two-time loser" because it means I cared enough about my fellow citizens to put myself on the line and offer them the very best thing a voter can ask for, a real choice, something voters aren't always getting at election time.... Are dogs who don't get named "Best in Show" losers and rejects? Should they hang their tails in shame and give up on Life? Read on....

 Is judging dogs harder than judging cases and controversies? "Nearly 4,000 of them are vying to be named 'Best in Show,' the top prize in the National Championship event...How do judges narrow the field? What do they look for when deciding which golden retriever is best? And once the 'Best in Show' contestants are announced, how can judges possibly compare dogs of starkly different breeds, like a poodle with a Great Dane?" Kevin Butler, not Louis Butler, provides you with answers. Details (Long Beach Press-Telegram 12.09.2009).

 Must prosecutor or public defender planning run for judgeship resign? It's an issue stirring up controversy in Dallas County in Texas. Incumbent judges, of course, favor such a requirement. More (Dallas Morning News 12.18.2009).

 When a prominent judge's son kills a prominent surgeon's son. Mara Bovsun, 'High Hat' club killing: Prominent surgeon's son killed by federal judge's son in Tulsa, 1934 (N.Y. Daily News 11.22.2009).

 Justice Kennedy -- Will he win one of those Jefferson Muzzle Awards? "The school newspaper at Dalton, a private school in Manhattan, contained a cryptic note from its editors last Friday. 'We are not able to cover the recent visit by a Supreme Court justice due to numerous publication constraints,' the note said...It turns out that Justice Anthony M. Kennedy, widely regarded as one of the court's most vigilant defenders of First Amendment values, had...insisted on approving any article about a talk he gave to an assembly of Dalton high school students...." Adam Liptak, From Justice Kennedy, a Lesson in Journalism (NYT 11.10.2009). Update. Justice Kennedy Frustrated Over Story on Dalton Speech Dustup (WSJ 11.17.2009). Comment. I hope he gets one of those slap-in-the-face Jefferson Muzzle Awards, given out annually by a group of First Amendment free-lovers -- er, free-speech-lovers -- to individuals and groups and organizations who get caught trying to stifle free speech, etc.

 Dahlia speaks on Scalia et al. Dahlia Lithwick, Spring Break, Scalia-Style -- The best Supreme Court case ever about partying on the beach (Slate 12.02.2009).

 A heartwarming story about a corrupt courthouse and the Christmas spirit. "Among the 20 charged [in the FBI's Luzerne County, PA courthouse corruption probe] are two former county judges, a suspended judge, an elected jury commissioner, two former court administrators and two former county administration officials." But, doggone it, that can't keep the many good people in the county, including courthouse folks who didn't do anything wrong, from celebrating Christmas or enjoying the courthouse Christmas tree. Michael P. Buffer, The Christmas spirit returns to courthouse that was scene of corruption (Citizens Voice 12.04.2009). As the T.V. miracle-product ad say, "But wait, there's more!" The above heartwarming story says two judges have been charged. Make that three: A third judge in Luzerne County has just now been charged. The judge is Michael Toole. The charges are "honest services fraud and tax evasion in connection with dealings he had with two separate attorneys." Details (Wilkes-Barre Times-Leader 12.04.2009).

 The latest on Sheriff Joe Arpaio. Errant Arizona officer jailed; colleagues and sheriff retaliate against judge (Civil Liberties Examiner 12.03.2009). Comment. I don't know where the facts lie as allegations and charges swirl in the shifting, whispering sands of Arizona, but you may want to keep an eye on this unfolding controversy.

 Judge is admonished for using position, resources for personal matters. The judge is San Diego Superior Court Judge Robert C. Coates, a 27-year veteran of the bench. This is the second time in a decade he's been disciplined for this sort of conduct. Details (San Diego Union-Tribune 12.03.2009). Comment. One can only guess how many judges in this great land have used and/or do use court stationery and court-provided postage on personal matters. That the number may be large perhaps explains why you likely won't see judges removed from office for this offense by itself.

 Feds charge another judge with fraud. "Maureen Cronin, a former Mahoning County Common Pleas Court judge, faces two federal criminal counts related to her taking an $18,000 'loan' from an unnamed 'senior executive of a business with multiple cases pending before' her and concealing it...." Details at Ex-judge faces federal fraud charge (Youngstown Vindicator 12.03.2009).

 Judge is admonished over campaign conduct. "The state Commission on Judicial Conduct has admonished New York City Civil Court Judge Margaret Chan for misrepresenting her endorsement by the Times, improperly soliciting contributions and demonstrating a 'pro-tenant bias' during the campaign...." Details (N.Y. Daily News 12.03.2009).

 Judge dies while snorkeling in Hawaii. The judge is "62-year-old John Linde of Friday Harbor, Wash., [who] was snorkeling with a friend...on the Big Island's South Kohala Coast." He was a superior court judge in San Juan County. Details (Seattle Times 12.04.2009). Comment. Sad story. Without knowing the specifics of this tragedy and without reference to it, I truly believe that, as a general proposition, vacationing significantly increases the risks of dying before one's time. I've seen too many instances. Not sure what it is. Does one let one's guard down when one is having fun? Is one on vacation more likely to engage in risky conduct? You tell me....

 SCOWVA's chief he supports continuing electing state's judges. The chief's name is Brent Benjamin. In a newspaper feature he is quoted saying he opposes depriving voters of a role in judicial selection. Of the so-called "merit plan," with its attendant abolishment of open judicial elections and their replacement by one-candidate retention "elections," he says that the term "merit selection" is "a misnomer": "That is marketing, pure and simple." He added, "Let people pick their judges. It makes sense. To paraphrase John F. Kennedy, a state afraid to let its people vote is a state afraid of its people. The notion that people can't be trusted to have a say in government...that is really sad. Certainly, elections can be tough, but I have confidence in people. Give them the information and believe in them. Why should we believe more in government to make the right choice than in people to do so?" Detailed story (West Virginia Record 11.13.2009). Comment. The chief, whose comments make a lot more sense than those we've been hearing from ex-SCOTUS justice, Sandra Day O'C, joins a number of state chiefs who are standing up for basic democratic principles and the intelligence of voters, most notably, Wisconsin's terrific chief. We're sorry to remind voters that Minnesota's appointed replacement chief, Eric Magnuson, who is a former colleague in the practice of law with Governor Pawlenty and who must seek a full six year term as chief from the electorate in 2010, doesn't have as high an opinion of that electorate as we do. See, Dan Pero, Chief Justice Magnuson's insulting statements about the capacity of MN voters (American Courthouse); Why SCOMN's new chief should listen to SCOWIS's more experienced chief.

 Our kind of judge -- a cheapskate with taxpayer money. U.S. Judge William Griesbach of Green Bay -- we call him "Griesbach of Green Bay" -- must be some sort of cheapskate when it comes to spending taxpayer money. Appointed in 2002, he's been holding court in space rented by the feds in an old public library for $300,000 a year. Green Bay is on a 12-year wait list for a new federal court building. Griesbach estimates one would cost $25 million. His plan? Buy the old library and remodel/expand it, a project he estimates would cost $9 million. Details (Green Bay Press-Gazette 11.25.2009). Comment. As readers of The Daily Judge know, I'm a believer in what I've termed "Thoreauvean Judicial Economics" -- that is, I'm a "judicial admistration cheapskate." I've never seen a government budget, including a court system budget, I couldn't cut significantly without retaining the overall quality of the services delivered. Believe me, there is always "fat." Too bad that the typical mindset of those who run things, "Why spend only $9 million when you can spend $25 million?"

 Judicial board complains about judge's backlog of cases. "The Wisconsin Judicial Commission Monday filed a misconduct complaint against Cudahy Municipal Judge John Zodrow based on allegations that his court has a backlog of about 3,500 cases dating back to 2002...." Details (WisPolitics 11.24.2009). Complaint (PDF). Comment. To quote an old Norsk saying, "Yustice delayed is Yustice denied...and by 'Yudicial delay' we mean delay in collecting village coffee-can-filling fines from speed traps that catch Scoflaw Swedes." (Just joking -- that is, "Yust yoking.")

 Annals of Aussie judges. "Raffaele Barberio, 60[, a] Victorian magistrate accused of assault and threatening to throw dog faeces in a neighbourhood dispute has missed his first court hearing because of health reasons...." Details (Brisbane Times 11.25.2009). Comment. In the U.S. judges are more likely, I would guess, to toss the old dog doo in a metaphorical way (rather than actually) -- and to do so in court rather than back in the old 'hood.

 Annals of judicial humor. "A courts watchdog group wants Hennepin County Judge Stephen Aldrich to resign because of an alleged pattern of inappropriate comments." The latest? "During [a recent] hearing to update an order for protection taken out by [a] woman...Aldrich said: 'I've been married 45 years. We've never considered divorce; a few times murder maybe.'" Details (Star-Tribune 12.12.2009). Comment. Resign? Really? Steve Aldrich isn't my favorite judge. But c'mon....

 They're tearing down our courthouse libraries. "The days of courthouse law libraries may be numbered...[T]he Judicial Branch last week revealed plans to close six of the state's 16 law libraries by early next year. Though the locations have not been revealed publicly, 'we're looking at the smaller locations around the state,' said Chief [Connecticut] Court Administrator Judge Barbara Quinn...." Details (CT Law Tribune via Law.Com 11.25.09). Comment. I don't know anyone who, during my nearly 30 years working for SCOMN, appreciated and benefited more from the resources and services of the MN State Law Library in St. Paul than I did. I'm not downbeat about its future, but it's one of those rare public institutions that has had farsighted leadership, under the likes of Marvin Anderson, committed to both preserving important traditions and staying current with or ahead of the curve of innovation and change. Costs of bound treatises and journals and proprietary online research services, etc., may have been going up, but the trend is clearly toward open access online journals, free or low-cost online research, etc. As the above report notes, "Last week...Google announced that its search engine Google Scholar now allows people to access full-text opinions of federal and state appellate and trial courts" -- and that's for free! I've used it a number of times and am impressed with it -- and it'll only get better. Perhaps CT, and other states, ought to consider merging their separate satellite law libraries with already-existing regional public libraries -- merging their collections into and supplementing the budgets of these public libraries in order to maintain adequate legal research facilities and specialized staff onsite at the public libraries.

 Ex-judge hangs self. An Aussie newspaper is reporting that a 57-year old former judge, Wu Xiaoqing, who was awaiting trial in China on bribery charges, hanged himself in his jail cell. Details (The Age 11.30.2009). Comment. I can imagine one doing that even if innocent of the pending charges. Arguably, it would be better to die as the judge did, in his own sad way, than face a typical Chinese ciminal "trial" and then one of those hastily-organized executions for which the Chinese justice system is notorious. But who are we in America to criticize China for still adhering to the barbaric death penalty, when we, pretty much alone among advanced civilized nations, still use it? See, my extensive postings on crime and punishment and on law and capital punishment.

 Prison ombudsman is charged with possessing prohibited items in prison. "A felony indictment against the newly appointed Texas Youth Commission ombudsman was unsealed Monday, accusing her of possessing a prohibited item in a prison facility...." The ombudsperson is a former judge, Catherine Evans. The contraband she allegedly tried to slip past security officers include "a knife, a cellphone and prescription drugs." Details (Dallas Morning News 12.01.2009).

 Jury says judge got real estate by fraud, sets punitive damages at $180,000. As readers of this blog know and as the Inquirer report of the jury verdict reminds us, "[Judge] Berry, 67, was suspended from the Common Pleas Court bench in July by a state disciplinary tribunal that found he had violated judicial canons by running a real estate business out of his chambers for more than a decade." Detailed report on the verdict and the background story (Philadelphia Inquirer 11.14.2009). But he won't be charged criminally (Philadelphia Inquirer 12.18.2009).

 Ex-Jersey judge gets probation for assaulting estranged wife. A former municipal judge in New Jersey (John Paragano) has been sentenced to two years probation for assaulting his estranged wife, [Diane Prior,] a New York City radio personality. Details (Philly.Com 11.14.2009).

 Stringer, ex-judge, gets probation for role in bank fraud. The judge, Thomas E. Stringer, is a highly-respected former FLA appeals court judge. He committed the fraud in helping a stripper friend obtain a loan. Details (Tampa Bay Tribune 11.14.2009).

 Staff attorney at appeals court is found 'trafficking' in term papers. "In Massachusetts, as in 16 other states, it is against the law to sell a term paper. That was news to Damian Bonazzolli, a senior staff attorney for the Massachusetts Appeals Court. Bonazzolli advertised himself on Craigslist as available to write term papers for a fee, promising to deliver a 'quality grade.'" Details at Robert J. Ambrogi, Appeals Court Lawyer 'Traffics' in Term Papers (Legal Blog Watch 11.04.2009), and at Ambrogi's source, Colman M. Herman, Term paper trafficking -- Web businesses thrive by peddling 'customized' term papers to students willing to pay for someone else's work (CommonWealth Fall 2009). Comments. a) Back in the 1970's The New Yorker, in one of those "strange coincidence" fillers, posted excerpts from a speech/article by a Hennepin County Minnesota (Minneapolis) trial judge side-by-side with nearly identical statements from a previously-published piece. To my knowledge, no ethics charges were brought against the judge. In my opinion, there was no need to do that -- the embarrassment of being "caught" by The New Yorker was punishment enough, if punishment in this too-prone-to-punish society was needed. One of the most-famous cases of "plagiarism" (borrowing?) in politics occurred in 1987, when Senator Joe Biden of Delaware, then a candidate for the Democrats' Presidential Nomination and now our Vice President, "was publicly humiliated after it was alleged he had pilfered parts of a speech from the then British opposition leader, Neil Kinnock. A Biden speech had gone: 'I started thinking as I was coming over here, why is it that Joe Biden is the first in his family ever to go to a university? Why is it that my wife who is sitting out there in the audience is the first in her family to ever go to college?' All of which sounds eerily similar to Neil Kinnock's very public musing: 'Why am I the first Kinnock in a thousand generations to be able to get to university? Why is Glenys the first woman in her family in a thousand generations to be able to get to university?'" The Plagiarism Plague (BBC News 02.07.2003). b) When is "plagiarism" not "plagiarism"? Most opinions of appellate judges in this country are way too long in part because i) many, maybe most, judges rely on law clerks to ghostwrite their opinions and ii) the clerks they hire to ghostwrite their opinions tend to come from law school student-run law reviews, where law students pick up bad writing habits such as longwindedness, excessive use of footnotes, refusal to follow Justice Holmes' example and use "etcetera" when it's called for, etc. Interestingly, although it's harder to write short opinions than long ones, the master of the short opinion, Holmes (the master of us all), made writing the short ones seem easy: he wrote his quickly, typically right after conference, and without significant help from his clerks. His clerks, some of whom were my law school profs at Harvard Law School in the 1960s, were an exceptional lot, but Holmes used them primarily as legal valets, never as ghostwriters. These days, it's considered a-okay for a judge to sign her name to an opinion that is ghostwritten by a clerk, or permanent staff attorney, as part of his job -- it's called "judging." On the other hand, when a college student signs his name to a term paper that is written by a moonlighting staff attorney or someone else, it's called "plagiarism." The difference? The "rules" say it's okay for a judge to put her name on a law clerk's work but not okay for a student to put his name on a ghostwritten term paper. Who writes these rules? Judges write the rules for judges. The no-ghostwriting rules for students are written by those who rule academia, professors who avoid "perishing" by "publishing" lots of papers and books written with the "assistance" of graduate research assistants. Sometimes a professor will share some of her glory in academic circles by allowing her assistants to affix their names to "her" papers; research assistants appreciate this, because it may increase the odds that someday they will be professors with their own research assistants writing papers for them to publish. Although it's possible there is such a bird, I'm not aware of any judge who credits the law clerk in either the body or in the notes of her opinions, although some advocates of greater judicial transparency and accountability have suggested that a way be found for judges to do so. (Some have even advocated letting the parties read the clerk's bench memo in order to correct any factual inaccuracies, legal boners, etc., in what is, after all, an ex parte communication to the judge(s). c) Given what I've said, is there no risk in a judge's signing off on a ghostwritten opinion? One risk that comes immediately to mind is the risk that that the law clerk -- perhaps having learned bad habits by relying on ghostwritten term papers in college -- might insert filched material without proper attribution in the draft opinion or draft speech. If the judge signs off and the filching is discovered and publicized, the judge may find herself, at a minimum, with egg on her face or even, less likely though still possibly, facing disciplinary proceedings. Me? If I were a judge I'd do my own research and wouldn't release any opinion under my name unless I'd written it. But, pay no attention to me -- I'm a tad eccentric, a bit of an old fuddy-duddy curmudgeon. I've even been called one in public, in writing, back when I "ran" for Congress. d) Consider, in addition to what I've said, this excerpt from a 2005 posting by the prolific Judge Posner on the Becker-Posner Blog:

The idea that copying another person's ideas or expression (the form of words in which the idea is encapsulated), without the person's authorization and without explicit acknowledgment of the copying, is reprehensible is, in general, clearly false. Think of the remarkable series of 'plagiarisms' that links Ovid's Pyramus and Thisbe with Shakespeare's Romeo and Juliet and Leonard Bernstein's West Side Story. Think of James Joyce's Ulysses and of contemporary parodies, which invariably copy extensively from the original -- otherwise the reader or viewer would not recognize the parody as a parody. Most judicial opinions nowadays are written by law clerks but signed by judges, without acknowledgment of the clerks' authorship. This is a general characteristic of government documents, CEO's speeches, and books by celebrities. When unauthorized copying is not disapproved, it isn't called 'plagiarism.' Which means that the word, rather than denoting a definite, well-recognized category of conduct, is a label attached to instances of unauthorized copying of which the society, or some influential group within it, disapproves. In general, disapproval of such copying, and therefore of 'plagiarism,' is reserved for cases of fraud.

 Annals of prosecutorial abuses that courts refuse to punish. "For you constitutional-law scholars out there with casebooks to update, you may soon have an addition to the growing chapter of cases called 'It Sucks To Be You.' The facts of Pottawattamie County v. McGhee, the case the Supreme Court hears today, are spectacularly awful. But they may also prove spectacularly immaterial. In the Roberts Court era, 'It Sucks To Be You' is a booming industry: Instances of shocking constitutional wrongs that cannot be corrected by constitutional courts...." Dahlia Lithwick, The Framers on the Framers -- Does the Constitution protect prosecutors who fabricate evidence? (Slate 11.04.2009).

 Panel says another New York village justice should be disciplined. This time it's Hudson Falls Village (Washington County) Justice Michael M. Feeder. He's being recommended by judicial watchdogs for censure for several incidents, one being his "confront[ing] a motorist and identif[ying] himself as a judge and us[ing] his judicial power to have the motorist arrested and then comment[ing] publicly about the case while it was pending." Some members of the conduct board want him removed, not just censured. Details (Times-Union 11.26.2009).

 The iTunes court. Thanks to St. Mary's University Law School and SCOTX, oral arguments at SCOTX, which have been available live via web-streaming, will now be available in archived form via iTunes U, "which is a source of free educational content and stores lectures, presentations, videos and podcasts from all over the world.." Details at Tex Parte Blog (Texas Lawyer 11.10.2009).

 The Rule of Law Index. "The Rule of Law Index is a new tool, created by the WJP [World Justice Project Rule], which measures countries' adherence to the rule of law..."

 Judge who recently resigned is charged with misconduct. "The allegations against [Georgia] Superior Court Judge Oliver Harris Doss Jr. range from taking state computers, insulting and threatening court staff and the repeated failure to rule on cases for months or even years...." Details (AJC 11.09.2009).

 SCOFLA will publicly reprimand judge for relationship with career criminal. The judge is Volusia County Judge Mary Jane Henderson, 55. She "admitted to an inappropriate relationship with a career criminal...whose rap sheet includes more than 60 arrests...." Details (News-Journal 11.05.2009). Comment. The commission determined that the judge created an improper appearance by appearing to lend her judicial office to advance her private interest in trying to help a drug addict straighten out his life.

 Judge is reprimanded for Facebook, Google activities. "A North Carolina judge has been reprimanded for 'friending' a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party...." Story at SCFamilyLaw.Com via ABA Journal Blog.

 Judges are in danger again in Northern Ireland. "Judges in Northern Ireland have had to increase their security arrangements due to the increased threat posed by dissident republicans...." More (BBC News 11.10.2009).

 SCOARK suspends judge for rest of his term but says he may run again. The judge is Circuit Court Judge L.T. Simes, the misconduct practicing law (receiving money for administering an estate) while a sitting judge. A dissent argued for permanent removal. Details (LegalNewsline.Com 11.09.2009).

 Ex-judge is charged with sexual battery. "[Chester Gunby, 69, a] former Baldwin County Magistrate Court judge has been charged with [misdemeanor] sexual battery, according to the Georgia Bureau of Investigation. Details (Macon Telegraph 11.09.2009).

 Harvard Law grad is killed in Afghanistan. The victim, Michael Weston, age 37, a member of HLS Class of '97, was killed while serving as a special agent of the DEA. Weston also had been "deployed to Iraq as a Marine three times." His widow is a classmate whose first husband, also a classmate and Weston's best friend, was killed in Afghanistan while working for the CIA in 2003. Details (National Law Journal 11.09.2009).

 SCOTUS hears all about life without parole for teenage criminals. "The estimated number of juveniles serving life without parole in the United States is 2,574. The number of prisoners given life without parole for nonhomicide offenses is 111 -- 77 of them are in Florida. Nine is the number of people serving life-without-parole sentences for crimes committed at age 13. And two is the number of 13-year-olds serving the sentence for nonhomicide offenses. Oh, and one is the number of countries that allows life without parole for teenagers...." From Dahlia Lithwick, My So-Called Life Without Parole -- The Supreme Court looks at life sentences for teen offenders (Slate 11.09.2009).

 Judge resigns after controversial year as judge. "After nearly a year of controversy, Mecklenburg District Judge Bill Belk has resigned from the bench...Belk, 60, was accused of violating the N.C. Code of Judicial Conduct by serving on the board of directors for at least two companies while in office, and for engaging in a confrontation with Chief Judge [Lisa] Bell...." Details (Charlotte Observer 11.07.2009). Comment. Back in 2005 I posted a link to a report of a judge being elected to the board of a bank. I commented that I didn't know a judge could still do that but apparently it was okay in some states. It used to be okay in Minnesota but I said I doubted that it still is. Royal A. Stone was an associate justice of the Minnesota Supreme Court from 1923 to 1942, and for a good part of that time was also President of the Swift County Bank, the bank to which my late father for over 50 years gave good weight and from which he received good weight in return. (Indeed, the house in which I grew up is on a corner lot that "sides" on Stone Avenue, named after the Stone family.) I also knew a colorful Minnesota state district court judge (a friend of my dad's, in fact) who I believe owned a bank and was active in banking circles while serving as judge.

 Annals of judicial retention elections -- one judge is retained, one sent home. Two judges in Luzerne County, PA, the county that has been rocked by a number of federal indictments resulting from a courthouse corruption scandal, were up for yes-or-no retention votes in this year's general election. One judge, Thomas F. Burke Jr., got 61.3% of the vote and was retained. The other one up for retention was Peter Paul Olszewski Jr., an 18-year veteran of the bench. He got 44.5% of the vote and was not retained. What appears to have contributed to his loss was the publication by the local newspaper, The Citizens' Voice, of a 2005 photograph of him "partying" with former Judge Michael T. Conahan, who was one of the indicted judges, and another man, Ronald Belletiere, who was a convicted drug dealer. Olszewski said he did nothing wrong and didn't learn of Belletiere's record until after the photo was taken.  Details (Citizens' Voice 11.04.2009). Comment. As a Minnesota prairie populist who believes the populist Minnesota Plan of voter participation in judicial selection is one reason we have such a fine and historically above-average judiciary in MN, I oppose the so-called Missouri/Ozark State Plan (much beloved by college political science profs), which eliminates voter participation in judicial selection and which substitutes screening of applicants-for-appointment by an elite often-stacked panel and fake-democratic one-candidate no-opponent retention "elections." The Missouri Plan usually operates as a sort of job security plan for incumbent judges -- except when it doesn't. It doesn't work that way when the voting public gets generally enraged with the judiciary over some event or some ruling. In such instances, the voting public has been known to vote quite punitively and "paint" quite broadly. For my in-depth posting/analysis of the relative merits of the Minnesota Plan and the Missouri Plan, see, Strib urges longer terms for judges, no role for voters in their selection.

 The death of a hired man who was everyman's attorney. "In a city of $750-per-hour lawyers and sophisticated criminals, Russell Paisley was the everyman's attorney. He roamed the halls of New York courthouses, taking on any and every type of case, often representing clients without thick pocketbooks. He was a well-respected and well-liked figure among judges, court officers, his colleagues and many others working in the city's courthouses. To them, he was one of the faces of an important, yet all too often overlooked cog in the city's criminal justice system...." Paisley who was only 48, died of an infection that followed a "routine tooth extraction." A NYT writer explains eloquently why Paisley's death has "rattled" the courthouse (NYT 11.03.2009).

 Ex-judge, acquitted of bribery in '93, denies new charges. The ex-judge in question is Phillip Davis, a former Miami-Dade Circuit Judge who was acquitted in the so-called "Operation Court Broom" bribery case. Now he stands accused of, and denies, "looting county and state grants" to a Florida college. Details (Miami Herald 11.03.2009).

 KY family court judge is reprimanded and suspended 45 days without salary. The judge is Tamra Gormley. The conduct board based its order on a) Gormley's failure to follow notice and hearing requirements in holding a person in contempt for conduct occurring outside the judge's sensory perceptions and b) Gormley's acting as advocate for a mother in a change-of-custody matter and her denying the father his right to present evidence. Gormley may appeal. Details (Herald-Leader 11.03.2009). Comment. We've said on numerous occasions that one of the easiest ways for a judge to get in trouble with the ethics board is to misuse the contempt power. Oh what a better world it would be if all judges listened to good ol' Burt! And, to paraphrase a schmaltzy song from my childhood, what a doggone wunnerful, wunnerful world it'd be if we all said a prayer for each other every doggone day.

 Annals of judicial reconciliation. "The Supreme Court...accepted unconditional apologies of 16 judges of the superior courts, who had taken oath under the Provisional Constitution Order (PCO) promulgated by former military dictator General (retd) Pervez Musharraf on November 3, 2007...." In exchange for the apologies, the court lifted the contempt of court notices issued against them. A number of judges, as many as ten, have not apologized and instead have chosen to contest the contempt notices. Details (The News - Pakistan 11.03.2009).

 Quote of the day: Nino says mind is a terrible thing to waste on the law. "Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise. I mean there'd be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn't she out inventing the automobile or, you know, doing something productive for this society? I mean lawyers, after all, don't produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That's important, but it doesn't put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.on the cases, trends and personalities of interest to the business community." Transcription of interview of Justice Scalia to be aired, along with those of the other justices (and an ex-justice, Sandra Day O'C), on C-SPAN during its "Supreme Court Week." More (WSJ Law Blog 10.01.2009). Comments. a) I recall Justice Frankfurter saying in Felix Frankfurter Reminsces, a delightful paperback consisting of transcripts made from a series of oral history interviews, that some of the best arguments were made not by the boys from the big firms or those who regularly appeared before SCOTUS but by small-town lawyers from Middle America making their first and likely only appearance. b) One can make the "too many of our best minds are wasting their talents" argument in other areas, too. For example, why do so many young grads of elite colleges like Harvard, Yale and Princeton become stock brokers and investment bankers? One answer might be that they need to make big bucks to pay the bill for their elite education that maybe wasn't better than the education they could have gotten at, say, the University of Minnesota. Me, I have sympathy for everyone (God bless each of us) as we decide and re-evaluate how best to spend our days, how best to "make a living." My invariable recommendation to anyone who wants it? Read or re-read Thoreau's Walden. Robert Frost said in times of psychic crisis he used to reread Walden.

 Should county's trial judges be double covered -- by two health benefit plans? The county exec in Pierce County in Washington state has proposed eliminating county-provided health insurance for the county's superior court judges because the judges are also covered by state employee health insurance. Pierce is one of only a few counties providing the additional benefit to its judges. Some judges, whose salaries are $148,000 a year, are reportedly threatening litigation if they lose the double coverage, arguing that any cut in benefits would amount to an impermissible diminution of compensation during their terms in violation of the state constitution. The presiding judge is reported saying, as paraphrased by a story in the News-Tribune, that "many of the judges are older people with spouses who don't work, so the double coverage provides an important benefit" and "medical bills could be 'financially devastating' without the double coverage." Details (News-Tribune 11.01.2009). Comment. Often, one's response to an issue depends on how the issue is phrased. If you ask it one way -- "Should judges, who make $148,000 a year, get double health coverage when there are a lot of people with no coverage?" -- you'll likely get a different answer than if you phrase it a different, less-loaded way. I'd need more info before I'd necessarily conclude that the judges are being unreasonable. For example, are the benefits under the county plan better than under the state 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 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.

Our Motto - "Ridentem dicere verum quid vetat" (Horace). Loose translation: Does anything prevent telling the truth with a smile?

Click here for DMCA Digital Millennium Copyright Act Claim Notification Info pursuant to Subsection 512(c)

Affiliated Web Sites

Advertisers - Please consider patronizing the advertisers, including today's featured advertiser, Bob's Perpetuities, Ltd., a multinational boutique law firm specializing in all facets of the arcane Rule Against Perpetuities. Founded in 2004, Bob's is already the leading firm in the field. You may not know you have a perpetuities problem. That's why the motto of Bob's Perpetuities, Ltd., is: "Whatever your situation in life, better contact Bob's."

Adv. -  In response to the "makeover craze" that's sweeping the nation, Klara's Kut 'n' Kurl announces that it will be setting aside Saturdays for judicial makeovers. Many judges, we find, have an image problem in the courtroom. They do not project authority or wisdom or gravitas or experience - whatever. Klara Fribund Kollevitz can help. For example, if you're an obviously-young judge or an older judge cursed with a Dick Klark youthful appearance, Klara can use state-of-the-art aging technology -- Gravi-Tox -- to add gravitas to your look. Judge-appropriate konfidentiality assured. Kall Klara's at Local 536 for a free konsultation.
Favorite Websites
Coming soon