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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.
A note to our Minnesota readers on a matter of great public importance. Legislators in MN and other states with judicial elections are being feverishly "courted" by members of the judicial-legal-political-media power elite in well-financed campaigns to do their part in changing their populist state constitutions to deprive voters of their distinctly-American role in selection of judges in exchange for the fake one-candidate "retention elections" offered by "the Missouri Plan." A couple years ago I posted a detailed critical essay on this topic, and I link to it here for the convenience of not only Minnesota readers but also of voters in other states who are being so "courted": Strib. urges longer terms for judges, no role for voters in their selection. In Campaign to deprive voters of a role in judicial selection you will find links to some of many of my earlier as well as later postings relevant to this important public policy question. In the following Special section on Minnesota Judicial Retirements, Selections, and Elections, I offer links to several new postings covering recent developments of interest to Minnesota voters who want to continue to have a real role in judicial selection.
MN's Magnuson quits as chief -- and the game of Judicial Keep-Away continues. "After two years as Minnesota's Supreme Court Chief Justice, Eric Magnuson will leave the bench in June...." Magnuson is quoted saying he's quitting for "personal reasons." Details (Star-Tribune 03.12.2010). Comments. Magnuson, a highly-experienced appellate advocate, will be the third GOP chief justice in a row to quit after a relatively brief term:
a) Blatz quits. The first in the sequence was Kathleen Blatz (now married to Wheelock Whitney, prominent Wayzata financier and inflential Republican), who was appointed by her friend, GOP Governor Arne Carlson. Despite having sought and obtained a full six year term from the electorate in November, 2000, she announced she was quitting in September of 2005, without serving out the full term, which was to expire in January 2007. See, MN's Chief Justice, Kathleen Blatz, 51, quits. This meant that voters were deprived of an opportunity to weigh in on the chief justiceship in 2006, since Minn. Const. Art. VI, Sec. 8 provides: "Whenever there is a vacancy in the office of judge the governor shall appoint in the manner provided by law a qualified person to fill the vacancy until a successor is elected and qualified. The successor shall be elected for a six year term at the next general election occurring more than one year after the appointment."
b) Anderson quits. In December of 2005 GOP Governor Tim Pawlenty appointed Justice Russell Anderson as Blatz's replacement. I posted a contemporaneous entry in this blog asking, "Is the appointment [of Russell Anderson as Chief Justice] in the nature of a caretaker appointment, with the idea being that Anderson will retire during Pawlenty's second term, to be replaced by -- need we provide a name?" See, Is MN's new Chief a caretaker chief? Whether or not the appointment was intended as such, it came to pass in Month 3 of Year 2008 that Nostraburtus' prophecy was fulfilled. See, MN's C.J. will skip election, retire early.
c) Magnuson quits. Not surprisingly, Gov. Pawlenty picked Eric Magnuson as Anderson's replacement. Although Magnuson was objectively well qualified, it didn't hurt that he was a former law partner of Pawlenty and was then the head of Pawlenty's appointment advisory committee. See, Pawlenty picks pal as new chief justice. In case you're wondering, Magnuson was the Anderson replacement "Nostraburtus" had in mind in his intuitive prophecy ("Is MN's new Chief a caretaker chief?") and rhetorical query ("Need we provide a name?") in late 2005.
d) Does anyone detect a trend? I must admit I'm partly but not completely surprised by Magnuson's decision to quit after just two years. He's still young and one is justified in assuming Pawlenty intended Magnuson would keep serving long after Pawlenty had moved on (and possibly up) to other things, just as one perhaps is justified in assuming Arne Carlson assumed Blatz would keep serving long after he had moved on. On the other hand, I've started to detect a possible trend among the appointees to SCOMN in, say, the last 15 years. Without suggesting that my opinionated generalization applies to any one of them in particular, as a group they don't seem to me to have shown as much staying power -- or perhaps as firm a commitment to extended judicial service -- as the typically-older-and-more-experienced judicial appointees had in the days before the ill-advised institution of the judicial mandatory retirement policy, which SCOMN upheld in one of its, in my opinion, most-poorly-reasoned opinions.
e) Herein of 'judicial keepaway' and judicial elections. In any event, Magnuson's sudden decision to quit early means that Pawlenty will get to appoint his third new chief in five years and that another election will pass with the voters being deprived of a say in the selection of who sits as their chief justice. Stated differently, it'll be twelve years (count 'em!) instead of six since any attorney has had a chance to step forward and give the voters a choice as to who occupies the position. I don't think that's what the drafters of our populist state constitution had in mind. As I said the last time this scenario played out, a cynic -- and I'm not a cynic, just a Holmesean skeptic -- might call it a judicial example of either "keep away," the popular children's playground game, or "freezing the ball," the "stalling" or "killing the clock" basketball tactic designed to keep the ball from one's opponent (the use of which led to the adoption of the "time clock" by the NBA and the NCAA, requiring the offense to shoot within so many seconds of gaining possession of the ball.) Neither C.J. Blatz nor C.J. Anderson nor C.J. Magnuson has done anything illegal, and perhaps no one else is troubled by this sequence of events. Although I'm not surprised, I am troubled. Indeed, I can't help thinking that when some members of the judicial establishment prate about judicial independence, what they really mean is i) they don't like the populist state constitution they've sworn to uphold and ii) judges, in their view, won't be independent until they're independent from any possibility of real, live electoral opposition. The latter, of course, is exactly what many members of the political-legal-judicial elite are seeking in their attempt to amend the state constitution to lengthen judicial terms and substitute in all instances fake Soviet-style one-candidate vote-yes-or-no retention "elections" for the possibility of the real thing, real contested elections in which MN voters, who have proven they are the best in the country, are given a choice between or among candidates.
c) Mandatory retirement of judges as bad public policy. For my detailed views on the folly of the judicial mandatory retirement law and my detailed argument why we should retire mandatory retirement, see, BurtLaw on Mandatory Retirement of Judges.
d) Judicial independence and accountability. For a detailed exposition of why we should beware of those who prate on endlessly about judicial independence but rarely if ever mention its twin sister, judicial accountability (as in judicial accountability to voters in real, not fake, elections), see, among my many relevant writings, my detailed 2000 essay, BurtLaw on Judicial Independence and Accountability.
Herein, some current postings on the 'reform' campaign to deprive Minnesota voters of a say in judicial selection:
A MN governor's ideological judges and Missouri Plan Judicial Retention Whack-A-Mole. "The Minnesota Supreme Court -- once known as a moderate to liberal body -- has shifted rightward with four appointments by Gov. Tim Pawlenty over the past seven years. The court isn't unfailingly conservative yet, but its rulings have begun to reflect the governor's conservative philosophy...." Details (Star-Tribune 02.27.2010). Comment. A majority of Minnesotans might otherwise like a particular governor for his political policy leanings, while at the same time disagreeing strongly with his ideological picks for judges, whether of personal pals or former law partners or members of his inner circle or ideological/political allies. The beauty of our current judicial selection system -- what I like to call our populist state constitution's "Minnesota Plan" -- is that it preserves a place for the voters in judicial selection. If a governor goes too far to the left or right in his judicial picks -- or even if he hews too closely to the organized bar's view of the Golden Mean -- lawyers with different backgrounds and different judicial philosophies are free to step forward and oppose particular appointees at election time, giving the voters an actual choice. Sadly, the politico-legal-judicial elite in Minnesota is seeking to shut the voters out of judicial selection by amending our great populist constitution and replacing the current open system with the closed "Missouri Plan," which substitutes Soviet-style one-candidate vote-yes-or-no retention elections, eliminating any possibility of real multi-candidate contested elections for a particular seat. The result will be that even if voters use their mallets to knock down highly-politicized judges, a determined governor (particularly a lame-duck one wishing to impress some ideological national wing of his party in the hope of furthering his Presidential aspirations) can respond by appointing ideological clones as replacements. Call it "Misssouri Plan Judicial Whack-A-Mole" (a/k/a "Whac-A-Mole"). The members of the elite have been pushing this "reform," which is the darling of college political science professors, for as long as I've been alive. Only in recent years, though, have members of the elite been using the-sky-will-soon-be-falling fear tactics to try get their way on this. The only thing I'm afraid of is that one of these years they'll get their way, depriving Minnesota's above-average voters of their historic prudently-exercised role in judicial selection. Interestingly, while the bar association types and other members of the elite seek to substitute the Missouri Plan for the Minnesota Plan, even though historically and currently Minnesota has had a much better judiciary than Missouri, there is a strong grass-roots movement in Missouri to abandon retention elections and replace them with real Minnesota-style contested judicial elections. Read on...
Will Missouri voters dump the professorially-beloved Missouri Plan? "It didn't take long for the Missouri Bar to respond to the news that the group ShowMe Better Courts received the OK to get signatures on their initiative petition to select all Missouri judges by direct election. The Bar... today announc[ed] a new Web site where citizens can log on and offer their comments about how a judge is performing...." Details (St. Louis Post-Dispatch 03.01.2010). Comment. According to the story, the judicial branch has also responded to criticism by "open[ing] some elements of the process, including announcing the times and locations of appellate judicial commission meetings and making the list of finalist judges (not just the final three) public."
Annals of merit-based judicial selection, Canada-style. The Ottawa Citizen and Canwest News Service have analyzed federal judicial appointees in Canada and concluded that the Conservative Harper government has favored "those who are politically like-minded." Specifically, "Of the 66 judges who donated before their appointments, 41 gave to the Conservatives, 14 contributed to the Liberals, another 10 gave to both parties -- the Tories and Liberals -- and one contributed to the NDP." Details (Ottawa Citizen 03.02.2010). Comments. a) The Tories, after "rail[ing] against patronage while in opposition," have given the high-paying positions to "more than a dozen identified party organizers, failed candidates, and former cabinet ministers." Id. b) And thus it always is, wherever you find yourself. Whatever the appointment system -- whether judicial wanna-be's are screened by a committee or not -- the appointments almost invariably are "political" in some sense. Some "systems" are better than others at hiding the politics of judicial appointments behind closed doors, where lawyers and/or politicos can work their magic relatively undetected. But there is always "politics." c) Which is why it's amazing that the members of the political/legal/judicial elites in various states can advocate, seemingly with a straight face, "taking the politics out of judicial appointments" by depriving voters of any say in judicial selection. Call it chutzpah.
Headline of the Day: 'Ruth Bader Ginsburg says she would forbid state judicial elections' (Washington Post 03.12.2010). Comment. It should be noted that Judge Ginsburg also dissented in the judicial free speech case, Minnesota v. White. So, there you have it: a "liberal" judge who believes voters should not have a say in judicial selection and, if they do, should not be allowed to hear anything other than the usual bar-association pablum from the candidates.
Quote of the Day: "The first aspiration of all oppressed peoples is to elect their governments -- the right to vote. Look at Iraq. It is surely a sign of profound decadence that a society -- in this case Minnesota's -- should undertake to strip itself of that privilege. Yet we are being told that we should docilely surrender the right to elect our judges (for our own good, mind you)." -- Hon. Jack Nordby, Hennepin County (MN) District Court, Beware idea of judicial retention vote (Star-Tribune - Op/Ed page 03.10.2010). Comment. Judge Nordby, who is the pre-eminent authority on our populist state constitution, was a classmate of mine at Harvard Law School. Although we're not friends, I've always believed him to be the most fiercely independent judge in the Minnesota state court system. His op/ed piece should be read by all Minnesotans. It eviscerates the vacuous arguments that the well-financed elitists are making in their latest effort to deprive MN voters of a say in judicial selection.
Retention'elections' as selection obscurant and incumbent protective. "It is hard to conceive of a system more likely to protect incumbent judges than the retention election system. We do not view this as a positive aspect of the Missouri Plan. Instead, we count it as a critical loss of public debate and self-government. The Missouri Plan's combination of committee-level politics and limited voter participation in retention elections has the effect of obscuring the judicial selection process from public scrutiny and debate. This is probably the most significant effect the Missouri Plan has on our political and legal system, and it is hard to see how this obscuring of the issues is supposed to improve the legal system...." -- From a 2003 White Paper on judicial elections by M. DeBow, D. Brey, E. Kaardal, J. Soroko, F. Strickland, & M.B. Wallace (Fed-Soc.Org 01.2003).
Can you guess who wants to deprive voters of a role in picking judges in MN? Cliff Taylor, who was Chief Justice in Michigan, points out that "it is not the business community, not labor unions, not farmers, teachers, retirees, or church pastors" who want to eliminate voter participation in judicial selection. No, it is "either lawyers or advocacy groups." Says Taylor: "They are hardly the only people who care about justice; they simply want the whip hand in choosing who dispenses it. These people do not truly want to preserve judicial independence, which is not really threatened...Politics will always play a role in the selection of judges. Do we want it openly and robustly present in the public square or behind closed doors with phony proclamations that the process is looking for the best person using impartial measures?" C.W. Taylor, Merit Selection: Choosing Judges Based on Their Politics Under the Veil of a Disarming Name (Harvard Journal of Law and Public Policy 2009). Comment. When I worked at SCOMN, where I was a trusted aide/adviser for nearly 30 years, I became intimately acquainted with all the various "law reviews." If you asked me to list the top ten or fifteen in terms of excellence, without regard to their particular "slant," the Harvard Journal of Law and Public Policy would make the list, which would be topped by its more illustrious "big sister," the Harvard Law Review -- and joined by the likes of Michigan Law Review, University of Chicago Law Review, Yale Law Journal, Georgetown Law Journal, Stanford Law Review, and several others.
Are elected judges better or worse? -- you might be surprised. "We began this project with the assumption that the data would demonstrate that appointed judges are better than elected judges. Our results suggest a more complicated story. It may be that elected judges are, indeed, superior to appointed judges. Or it may be that elected judges are superior to appointed judges in small states only and not necessarily in large states. At a minimum, the conventional wisdom needs to be reexamined...." S. Choi, G.. Gulati, E. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary (Journal of Law, Economics, and Organization 2008).
The Not-So-Ancient 'Minnesota Scariners' are at it again. "If Minnesotans want to prevent special interests from buying seats on the state's courts, they must overhaul the way they select judges, Chief Justice Eric Magnuson...told a legislative committee...'The storm is coming,' he warned...." More (Pioneer-Press 03.04.2010). Comments. The not-so-ancient "Minnesota Scariners" -- i.e., the members of the Minnesota (Legal-Political-Judicial) Power Elite who don't want voters to have any say in judicial selection -- are once again trotting out the tired old argument about the imminent threat that requires us to take preemptive action. The truth is, the Minnesota Power Elite has never liked the idea of voter participation in judicial selection and has been trying to get the state constitution amended to do away with real judicial elections since before I was born. The threat of "big money" campaigns is just the aforesaid elite's latest argument (a/k/a scare tactic) to get us all to adopt the professorially-beloved Missouri Plan, with, first, its citizens commissions that are dominated by lawyers, politicians (including judicial politicians) and other members of the power elite and, second, its retention "elections" (i.e., non-elections). But, failing that, it appears they're now willing to even forego any pretense of merit selection so long as they can get the constitution amended to a) lengthen the terms of judges from six to eight years and b) provide for retention non-elections. Many of them are phrasing their little plan in such a way as to suggest that by "creating" retention "elections," they're giving the voters something for which they ought to be thankful. But what they sort of omit saying clearly is that their neat little plan is to substitute these fake, one-candidate yes-or-no non-elections for real contested elections, thereby depriving voters of any role whatever in judicial selection. We forecast that if the amendment is passed, the Minnesota judiciary will come to rue the day because, as Pennsylvania judges will tell you, retention elections don't prevent big-buck interest groups from targeting judges individually or en masse or give judges more security in their positions. As Paul Carrington has noted, the retention election may be the "worst kind of election to conduct for judges who have been sitting for long enough to acquire a record that can be mischaracterized on major league outfield fences." Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, 61 Law & Contemp. Probs. 79 (1998).
The Rime of the Not-So-Ancient 'Minnesota Scariner.' "Sir Burton, can you spell it out what you mean in referring to the Not-So-Ancient Minnesota Scariner?" What I'm saying is that Chief Justice Coleridge -- er, Magnuson -- paints a picture almost as scary as that painted by Samuel Taylor Coleridge's bright-eyed Ancient Mariner. Listen, my friend, and you shall hear....
And thus spake on that ancient man,
The bright-eyed Minnesota Scariner.
And now listen to
The ghastly tale of woes to come
Of which he strangely spake
That lie in wait for those who vote
For judges free.
He seemed to say,
'Only ill will come,'
Or so I thought I heard him whee,
'If foreign money come
And buy spots on TV.'
A landscape artist, in 'residence' for a day, somewhere in time, in the frozen Edina, MN wilderness. One of the best kept secrets is that Edina, MN -- the suburb which, in cartoonist Richard Guindon's words, young Minneapolis wannabe's hope to "achieve" -- is home to a number of metropolitan mini-wildernesses. Within a mini-wilderness near my home that is dear to my heart -- and that of my companion on daily walks in all kinds of weather, a foxy, lithe and elegant border collie named Jane -- are fox, deer, hawks, mink, muskrats, ducks, geese, bald eagles, and some friendly and interesting people one meets on one's saunterings. On February 25 on a lovely afternoon walk on frozen Minnehaha Creek I came upon a landscape painter who has been blessing Edina, and other picturesque spots in the metropolitan area, with his presence. His name is Robert Matheson. He's a Norwegian-American with some of the small-town in his blood. And, being Norwegian-American, he's way above average at what he does. Jane and I had a long talk with him as he painted away with his oils on that memorable day. And he consented to my taking some pictures of him at work/play -- and to posting one of them along with a reduced-in-size-and-resolution digitized copy of the painting that he completed later in the afternoon. I don't doubt that once Edinans "discover" his work, we will hypothetically be seeing oil paintings by him above fireplaces in houses we'd visit if we were more sociable and actually accepted the invitations that flood in at the rate of one or two a year. You can see more of Robert's work and find out how to contact him if you visit his website, Robert Matheson Fine Art - Preserving the landscape one canvas at a time.
Quote of the Day. "The judges are like pit bosses at a Vegas casino whose obligation is to make sure everyone stays at the table and keeps gaming...[When] there [is] no money to be pumped out, it [is] over very quickly." -- Actor Alec Baldwin, remark while participating in a forum at Fordham Law School. Alec Baldwin Takes On Judges (Huffington Post 02.25.2010).
Judge gets whopping 50% pay raise. "The Bayard Town Council, at a special meeting Wednesday, voted to give the community's municipal court judge a $200-a-month raise...." The part-time judge's salary will now be "$600 a month 'for services rendered at a minimum of 12 hours per week.'" Details (Silver City Sun-News 02.10.2010). Comment. Figuring 48 hours a month at $600, the judge will be getting a whopping $12.50 an hour. And who says law school doesn't pay off "big time"?
Judge is charged with abusing judicial power. "Florida's Judicial Qualifications Commission on Thursday notified Broward County Circuit Court Judge Dale C. Cohen that he faces charges he violated his position as a sitting judge and abused his judicial power...." Details (South Florida Business-Journal 02.25.2010).
Annals of judges caught on tape. "A Canadian court was to hear a tape recording Tuesday of a former immigration judge who is alleged to have sought sex from a South Korean woman in exchange for granting her asylum, court officials said...." Details (AFP 02.22.2010).
Annals of misclassified 'executive' legal secretaries. Are some law firms misclassifying their legal secretaries as "executives," even though the secretaries don't manage other employees, in an attempt to squeeze the secretaries into the "executive" exemption to federal overtime pay laws? The issue apparently is now subject of a number of suits being filed in federal court on behalf of secretaries at some big law firms. Details (Law.Com via AmLawDaily 03.02.2010).
Judge who's accused of relationship with prosecutor stays away from courthouse. "Circuit Judge Ana Gardiner[, 48,] stayed away from the Broward courthouse [again] Thursday, one day after a state judicial watchdog agency accused her of improperly exchanging phone calls and text messages by the hundreds with a prosecutor[, Howard Scheinberg, 49,] as both of them worked on a death-penalty case...Because of the allegations of an improper relationship between the two, a convicted murderer sentenced to death has been granted a new trial...." Details (South Florida Sun-Sentinel 03.04.2010). Earlier. Judge is accused of inappropriate relationship with prosecutor (South Florida Sun-Sentinel 03.03.2010). Complaint (PDF). Comments. a) The complaint's tally? Would you believe "949 calls and 471 text messages over a 155-day period in 2007 during which [Judge Gardiner] oversaw a murder trial that he was prosecuting"? I wonder if we'll get to read the texts. b) This sort of case is not so much about relationships (I don't think a judge should be precluded from having a relationship with a prosecutor) but about sitting as a judge on a case being prosecuted by one with whom one is involved and thereby creating at a minimum an appearance of impropriety.
Annals of judge-prosecutor romances. Last year the TX Court of Criminal Appeals denied a convicted killer, Charles Dean Hood, a new trial based on evidence of an openly secret affair (one whispered about among lawyers, etc.) between the trial judge, Verla Sue Holland, and the prosecutor, Tom O'Connell. Now, however, the same court, in a split decision, has awarded Hood a new trial on the issue of whether to impose the death penalty. The court said the jurors weren't allowed to consider certain so-called "mitigating" evidence. Details (NYT 02.24.2010). Comment. We probably haven't heard the end of this case. Earlier. Adam Liptak, Questions of an Affair Tainting a Trial (Sidebar - NYT 02.22.2010) ("Campaign spending may undermine the integrity of the judicial system. The same goes for a gag gift of confectionary genitalia. But a love affair between the judge and prosecutor in a death penalty case is, in Texas, at least, another matter.").
Annals of interior courthouse decor. Dianne Jennings, a reporter for the Dallas Morning News, has a short piece on Federal Judge Barbara Lynn's efforts at making the atmosphere of "her" courtroom, as Lynn puts it, "a little more soft." What has Lynn done? She's installed some quilts and wall hangings, including a quilt "that features the scales of justice, a gavel and an American eagle" and "a banner brought back from Africa by one of the judge's children." More (Crime Blog - Dallas Morning-News 03.04.2010). Comments. a) While it sounds like Judge Lynn's experiment in courtroom decoration is harmless enough, it also seems clear that "Lynn's courtroom" is not her courtroom in the sense that she's free to decorate it as she wishes. One wishing to create a taxonomy of what is within the range of a judge's decorating discretion might distinguish among: i) the judge's "private" office within the judge's office suite, ii) the secretary's and law clerk' offices within the suite, iii) the public or visitors' waiting area within the suite, iv) the common hallway leading to other judicial suites, v) the judges' collegial conference room, vi) a particular "judge's" courtroom (which might better be called "the people's" courtroom), vii) other public areas within the courthouse. b) The BurtLaw Judicial Interior Decor Hall of Fame Lifetime Achievement Award for Unauthorized Interior Decoration of a Public Area of the Courthouse goes to Roy Moore, who, as you know, is the so-called "Ten Commandments Judge." Moore was elected Chief Justice of the Alabama Supreme Court on a Ten-Commandments-in-the-courtroom platform. Without permission from his associates, he had workmen move a large "monument to the Ten Commandments" into the court building in the middle of the night. Eventually, he was ordered by a federal court to remove it & was himself removed from office by the state for failing to comply with the federal court order. More & more. And see, 7-day cruise with the chief -- as low as $1,468! (scroll down). Further reading. Here are links to a couple of the many relevant comments I've posted that bear on the range of a judge's decorating discretion in the taxonomy of contexts set forth above: Annals of judicial chambers makeovers and Reining in those wild-spending judges (two pieces republished in one place); D. D. Wozniak, Chief Judge, MN Court of Appeals, dies at 82.
In hard economy, SCOFLA says it wants 90 more judgeships. "The Florida Supreme Court has asked the Legislature to create 90 new judgeships at the trial court level...." Details (Miami Herald 02.25.2010).
Might a federal anti-SLAPP law help in combatting 'lawfare'? A SLAPP is a "Strategic Lawsuit Against Public Participation." Attorney Marc J. Randazza, who makes a living defending against such suits, says a typical SLAPP involves "a rich douchebag [who] has plenty of money to spend on attorneys's fees...su[ing] a couple of critics, thus scaring the bejesus out of anyone else who might criticize him." Not only do SLAPPs "clog the courts, waste resources and contribute to a general culture of litigousness" (Public Participation Project), they stifle free speech. Enter Steve Cohen (D-TN), who has proposed a federal anti-SLAPP law modeled on California's law, which is tougher than the typical state anti-SLAPP law. Might it pass? Randazza hopes so, but comments wryly: "One would think that the Republicans would line up behind this -- as it provides much-needed 'tort reform.' The Democrats...well, there was a time when the Democratic party seemed like the party that favored free speech. I am starting to doubt that...." Details (Citizen Media Law Project 03.04.2010). Comment. As readers of The Daily Judge know, I have proposed abolishing defamation as a cause of action.
Oprah has to defend another defamation suit. "Oprah [Winfrey] is coming to Philadelphia...at the end of March...and could spend two weeks here defending a defamation case linked to a sex-abuse scandal at her South African girls' school... The case centers on remarks Oprah made in suspending [the] school headmistress...amid the 2007 abuse complaints...sa[ying] she [had] 'lost confidence' in Mzamane and was 'cleaning house from top to bottom.'" Howard Gensler, Oprah is coming here for court case (Philadelphia Daily News 03.17.2010). Update. I heard the other day that the parties have reached one of those "amicable out-of-court settlement." (03.28.2010).
What if a judge held a tea and no one showed up? "Karnataka High Court judge D V Shylendra Kumar, best known for favoring public declaration of assets by judges of the higher courts through blogs and letters, cut a lonely figure on Wednesday evening after no fellow judge turned up for a tea meeting he had called to discuss the judiciary, including restoration of public confidence in it...." Fellow judges skip tea meet called by blogger judge (Indian Express 03.12.2010).
Sheriff: Judges are wasting taxpayers' money. The Cook County (IL) Sheriff, Tom Dart, is accusing judges of wasting taxpayers' money and blocking or ignoring his moneysaving ideas, which include: a) closing down weekend courts because "there's nobody there," b) "us[ing] closed circuit for people who literally have nothing to say to the court," and c) expanding by five-fold, from the current 341, the use of ankle bracelets and electronic monitoring, which he says saves the county about $75-per-detainee-per-day. Source (Chicago Public Radio 03.17.2010).
Band plays as retiring Judge Subhash Chandra leaves the premises. "The judicial officials of Kanpur Nagar court on Friday gave a farewell party to district judge Subhash Chandra ...." The retiring judge was "garlanded" by "all judicial officials" in his chambers after lunch, and otherwise given best wishes, then was given a musical salute by the "PAC band" as he left the premises. Source (Times of India 02.26.2010). Comments. a) I'm not familiar with the way these good-bye affairs are handled in India. But here in Nice Middle America, everyone typically gathers for cookies, a forgettable "token of our affection" is handed over by the unofficial mistress of ceremonies, maybe a few kind words are said by a few people about how the person will always be a part of the mythical non-existent "court family," and then the attendees disperse, hurrying back to their cubicles and chambers, and everybody pretty much instantly forgets about the honoree. Or so I'm told. b) Many active judges, I believe (a belief based only on my observations and understanding of human nature), have an ongoing Walter Mitty fantasy of someday retiring a la the beloved Martin ("Marty") Maher in the 1955 John Ford movie about West Point, The Long Gray Line. Who was Martin Maher? In order to tell the "West Point story," the screen writers focused on the actual life of Martin Maher, "the scrappy Irish immigrant whose 50-year career at West Point saw him transformed from dishwasher to non-commissioned officer and athletic instructor." More (Wikipedia). I was 12 years old when I saw the movie in The Demarce Theater in Benson, MN. The scenes I recall most clearly in this super-sentimental movie are i) the tear-jerking scene in which all the cadets serenade the beloved Maher with a Martin-Maher version of the lyrics of the traditional Cadet song "Benny Havens Oh" (to the tune of the Irish song "The Wearing of the Green") and ii) the tear-jerking slightly overdramatized version of the cadet review "on the plain" that Maher received in May of 1946 prior to his retirement in June (accompanied, if my memory serves me correctly by the singing again of the movie's Martin-Maher version of "Benny Havens Oh"). (Source: Postings by "J. Phoenix, Esq." at "Gray Matters," a website maintained by the West Point Assoc. of Graduates: see, Marty Maher & Bringing Up the Brass and West Point Songs.) I advise judges entertaining Marty-Maher fantasies, as in all matters, to follow Holmes' dictum to "think things, not words," and therefore to neither wish for or pay any attention to or believe the plaudits of the crowd. Judges should know instead (and not be disturbed by the fact) that "the crowd" (including members of the "court family") won't care one whit when they're gone.
A court in Bethlehem is declared unfit for human occupancy. "A condemnation sign graces the double doors of District Judge Roy Manwaring's [rented] court at 402 East Broad St. [in Bethlehem, PA]...Bethlehem chief housing inspector...ruled the court unfit for human occupation Thursday after the office's plumbing failed and several complaints about the damaged roof failed to produce a permanent fix...." The landlord, who is a minister, says he'll fix the problems, and in the meantime the judge "expects to handle several landlord-tenant disputes at County Court...and any emergency arraignments will be heard via video link from his home." Story (Lehigh Valley Live 02.26.2010).
Judge's unusual handling of domestic violence case attracts critical attention. Prosecutors sometimes prosecute men on domestic assault charges over the wishes of the complainant, who may have any of a multiplicity of possible reasons for wanting the charges dismissed. Last week that apparently was the case when two parties, a man and the female complainant, his fiancee, appeared before Baltimore County District Judge G. Darrell Russell Jr. It came to pass that the defendant's attorney advised the judge that defendant and the complainant wanted to get married. The kind judge gallantly allowed the defendant to go to the license bureau and obtain a marriage license, then performed the ceremony for the couple in his chambers, before proceeding with the "trial." After the defendant's new wife invoked the Maryland marital privilege, the judge acquitted the defendant for lack of sufficient evidence of guilt, saying, "I found you not guilty, so I can't sentence you as a defendant in any crimes, but earlier today, I sentenced you to life married to her." Not surprisingly, some people have demanded an investigation, and the judge has been reassigned pending further developments. Story (Baltimore Sun 03.18.2010). Comment. Back in the day when Andy Hardy's dad, Judge Hardy, brought tears to our eyes with his heart-to-heart in-chambers discussions and practical solutions to matters like this, a real live judge (and not just a movie judge) could do what Judge Russell did and find himself praised for it, perhaps featured in a folksy profile in Grit magazine. But those days are gone. Now we're told that there's only one way to deal with domestic violence cases: arrest the man on the woman's complaint, persuade the woman to get a restraining order, and prosecute the man come hell or high water. See, Annals of clogged courts: herein of harassment order mania (The Daily Judge 09.10.2009). Anyone who questions this protocol is deemed outside the pale and any judge who does what Judge Russell did, or acts at any moment other than robotically according to "the program," is quickly condemned and investigated by the judicial police. Indeed, any judge who even tries to lighten things up a bit in a perhaps-poorly-chosen aside may find some scold or other on his case, asking for his head. Like it or not, such is the state of affairs these days in courtrooms all across America. Is the judicial system better as a result? I merely ask the question in the spirit of objective dispassionate inquiry -- that is, in the same spirit in which Holmes asked his famous rhetorical questions in his great 1897 'The Path of the Law' speech/essay, 10 Harvard Law Review 457 (1897).
MN appellate court upholds conviction of hubby for secretly taping nude wife at home. Our legislators in MN passed a law making it a gross misdemeanor if a person, with "intent to intrude upon or interfere with the privacy of the occupant," secretly installs or uses "any device" in order to observe, photograph, record, etc., through a window or other opening "sounds or events" occurring within a "place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose [his or her] intimate parts." Now a three-judge panel of the intermediate state appellate court has upheld a conviction based on evidence that a man, for his personal viewing, secretly videotaped his nude wife in the bathroom through a hole he made in the wall separating the bathroom from a closet. Details (Pioneer-Press 03.09.2010). Comment. Might it be okay, judge, for a guy to keep his eyes open while his wife undresses? And, er, is it okay to get a peek at her during sex? And, er, ah, what if a police officer wearing a required "body camera" stumbles in and accidentally films her hubby as he's undressing? Read on...
Should police be required to wear 'body cameras'? "RCMP [Royal Canadian Mounted Police] officers should wear 'body cameras' to bolster their accountability, say Liberal senators in a report that warns there will be 'horror stories' on the horizon unless sweeping changes are made to restore public confidence in the 'sullied' force...[One of the senators] said he got the idea after Polish immigrant Robert Dziekanski died after being repeatedly Tasered by RCMP at the Vancouver airport in 2007. He said he has since learned that the Ottawa police force equips its Taser stun guns with video cameras...." The report also advocates equipping RCMP vehicles with dash videocameras, the sort that many police departments in the U.S. have installed in squad cars. Detailed story (Montreal Gazette/CanWest News via Canada.Com 02.22.2010). Further reading. For my views on the various uses of videocameras to improve police performance and judicial performance, see, my mini-essay reproduced at SCOMN's timidity about letting the sun shine in on courts.
Playboy Model of the Year shouts at judge, gets probation for assaulting woman at club. "A former Playboy [M]odel [of the Year] who attacked a woman in a nightclub walked free yesterday despite shouting at the judge. Louise Glover[, 27,] made such a racket in the dock that Judge Charles Kemp had to yell: 'Shut up and listen.' She was warned she would be taken to the cells if she did not keep quiet...." But all ended well for the "model," who arrived late for the hearing: the judge imposed a sentence of 30 weeks in jail but suspended execution conditioned on two years' of good behavior, community service, etc. Story (UK Express 02.16.2010). Her offense? She accused a young woman at a night club of "looking" at her husband in an inappropriate way that is supposedly common to "Essex girls" and then banged the woman's head "against a toilet up to 10 times before trying to push it into the bowl," causing actual bodily injury in the process. Comment. Ms. Glover is quoted as saying her modeling career is "in tatters" as a result of the incident. I'm so naive that I would have thought her career would benefit from all the publicity. As Huey Long used to say, "There's no such thing as bad publicity."
Former investigator for DA is charged with assaulting ex-girlfriend, a judge. "[Lewis Palmer, 48, a] former investigator in Philadelphia's district attorney's office[,] is charged with beating up his ex-girlfriend, [Leslie Fleisher,] a city judge...." Palmer's attorney says he'll be vindicated. Fleisher's attorney says she is going to resign "to pursue other interests." Story (Delaware Online 03.11.2010).
SCONJ reprimands two judges for making disrespectful, insulting statements in court. "The state Supreme Court today reprimanded two Superior Court judges, saying they made disrespectful and insulting statements to people appearing before them...." The judges are Judge James B. Convery, sitting in Essex County, and Judge James N. Citta, sitting in Ocean County. Details (Star-Ledger via NJ.Com 03.08.2010).
Court upholds life in prison for a top Chinese judge. "[The Hebei Province People's High Court] in northern China has upheld a life sentence for a former supreme court judge[, Huang Songyou, who was] convicted of embezzlement and bribery...." Details (AP/Google 03.18.2010).
A practical solution to a thorny constitutional violation. "A monument of the Ten Commandments in front of the Haskell County Courthouse in Stigler is scheduled to be transferred this morning to a new location in front of the adjacent American Legion building, officials said Tuesday...The U.S. Supreme Court earlier this month refused to review an appellate court decision that placement of the monument on the courthouse lawn in 2004 amounted to an unconstitutional endorsement of religion by a governmental entity...." Detailed story (NewsOK 03.17.2010). Comment. The monument's new location is aprroximately 25 yards from its former location. Sometimes, it seems, a minus can be turned into a positive is as easy as simply drawing a vertical line through a horizontal line.
Rape trial aborted as judge goes on holiday. "A rape complainant will be forced to give evidence twice after the trial of her alleged attacker was aborted because the judge went on an overseas holiday ...She was part-way through giving evidence when the trial was aborted as it became clear the case would not finish before Judge Philippa Cunningham flew to Australia yesterday for a pre-booked holiday...." Details (NZ Herald 02.27.2010). Comment. It turns out the judge gave the people who schedule trials notice of her plans and they shouldn't have given the judge a trial estimated to last four days, particularly since trials often run longer than estimated. I'm not aware of NZ law on retrial following a mistrial not caused by the defense. In the U.S. "jeopardy" attaches once the trial itself formally commences -- when the jury that has been selected is sworn or, in the case of a trial without a jury, when the first witness is sworn. After that a mistrial declaration bars retrial unless the mistrial resulted from "manifest necessity." I doubt that a judge's need to commence a previously-planned vacation would constitute manifest necessity. Clouding the issue in this case, if U.S. law applied (which it doesn't), would be a) the fact that the judge offered to let trial continue under a different judge and b) the fact defense counsel was unavailable if the trial continued into a second week and opposed continuing the trial.
Financial difficulties of a suspended judge charged with assaulting wife. The judge in question is a PA judge, Senior Judge C. Joseph Rehkamp. The unpaid suspension means he isn't getting his $5,500 per month salary; however, he receives $3,400 a month pursuant to the state pension he earned during his 16 years as a Court of Common Pleas judge. Complainant, his second wife, withdrew the allegations, possibly as part of a divorce/alimony agreement, and the charges were dismissed. However, they've apparently been reinstated, based on admissions he allegedly made when arrested. The Citizens' Voice, a local paper, now says it has learned from court documents that Rehkamp is behind in alimony payments to his first wife and that he "has amassed nearly half-a-million dollars in debt with carefree splurges on a sports car and jewelry and a $218,000 bailout for a daughter and a son-in-law who owed taxes on a failed business...." Detailed story (Citizens' Voice 03.01.2010).
Judge is admonished over campaign statements. A N.Y. trial judge, Patrick McGrath of Troy, "has been admonished for sending a letter to pistol permit holders during his campaign promising he would not abandon them should he be elected.... " Details (Times-Union 02.16.2010).
Bobblehead judges on display in hallowed halls of ivy. According to the NYT, Yale Law School is trying to distinguish itself from my alma mater, Harvard Law, which everyone agrees has a better collection of rare law books and is a better (nay, the best) law school, by acquiring and maintaining a collection of rare bobblehead dolls of SCOTUS Justices. It has a dozen or so now and promises to continue to collect them as they are issued in extremely-limited editions by the proud publishers/editors of The Green Bag, who distribute them to select subscribers. Details (NYT 03.17.2010). Comments. a) I wonder if the bobbleheads in New Haven might want one of our limited edition BurtLaw Nerd Club Pocket Protectors in their legal trivia collection. b) Perhaps the impoverished folks at Yale Law can persuade #44 to steer some federal stimulus dollars to Yale to build an addition to its Lillian Goldman Law Library to house its expanding legal trivia collection. Or how about funneling some of that easy money this way for the establishment, perhaps on Minnesota's famed Iron Range, of an American Judicial Walk (or Hall) of Fame, an idea I first broached several years ago in this entry:
Query: Might an "American Judicial Walk of Fame" be a great tourist attraction for some court, drawing judicial groupies from all around the globe? It could be a money-making proposition, sort of like a museum gift shop, with friends who want to "immortalize" a favorite judge there being required to pay a modest fee, say, $5,000. The Judicial Walk of Fame Gift Shop could sell judicial bobble-head dolls, autographed copies of opinions by judges, etc., etc. The profits could be used to supplement the shockingly-low salaries of judges and help fund a dream project, The Big Court, a retirement court where the individual units would look like courtrooms by day but that could easily be converted to bedrooms at night through the use of Murphy beds, etc. During the day the judges would occupy themselves hearing moot court cases from local law schools. They would be allowed to play hooky and head for the golf course each afternoon without reporting their time off "the bench." Nurses would be required to address them as "Your Honor" -- or "Your Lordship." [Note brilliant Robertsian use of dash.]
The Wichita benchman is still on the bench -- at 102. The judge's name is Wesley Brown. He's a federal judge in Wichita. He started "working" when he was ten after his dad fell ill. He's still going strong at 102. Oh, he no longer walks up the four flights to his chambers every day but he's still on the job every day, doing the people's business. More (Wichita Eagle 03.01.2010). Comment. In the Minnesota state court system, he'd have been deemed incompetent as a matter of law at age 70, forced to retire. If the Minnesota law had applied to federal judges, a) Holmes would never have been appointed because mandatory retirement strikes a broad swath, discouraging the executive from appointing someone like Holmes at age 60, and b) Holmes would never have written some of his greatest opinions, many of which were written long after he turned 70. As readers of my blawgs know, I oppose mandatory retirement of judges. I first publicly stated my opposition to mandatory retirement of judges in Minnesota in a detailed campaign position paper I wrote in 2000. If you're interested in why I believe Chief Justice Amdahl's opinion in the mandatory retirement case, State v. Saetre, 398 N.W.2d 538 (Minn. 1986), is a terribly flawed decision, you can read my reasoning here. At the time I wrote the paper, I was pretty much alone in my opposition to mandatory retirement. But the tide of public opinion against this stereotype-based form of invidious discrimination is changing.... Further reading. Too old to serve as judges, retired judges are called on during crisis.
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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