The Daily Judge
© 2005 Burton Randall Hanson
           Archives - 08.25.2005 - 08.31.2005
"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 "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 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.

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 worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

    Courthouse recycling. "Being in the ‘Dock’ in Carrick-on-Shannon could be a really pleasant experience from now on...Carrick’s famous old C 19 Courthouse at St George’s Terrace has been transformed into a state-of-the-art centre for the arts in south Leitrim. Overlooking the river Shannon, it has echoes of the Ardhoween Theatre on the banks of the Erne in Enniskillen...." More (Sligo Weekender 08.31.2005).

    Judge as banker. "Heritage Bank, currently celebrating its 50th year serving Clayton, Fayette and Henry Counties, has elected Clayton County Superior Court Judge Stephen Boswell to its Board of Directors...." More (The Citizen 08.31.2005). Comment. I didn't know a judge could still do that. Apparently it's okay in Georgia. It used to be okay in Minnesota but I doubt 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 gave good weight & from which he received good weight in return for over 50 years. I also knew a 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.

    When is a dog a 'pit bull'? "Legislation that took effect Monday made it illegal to own a new pit bull-type dog in Ontario, although existing dogs can live out their days as long as certain conditions are followed...Under the new legislation, a pit bull is defined as a Staffordshire bull terrier, an American Staffordshire terrier, an American pit bull terrier or any dog that has an appearance and physical characteristics that are 'substantially similar' to those dogs...." Michael O'Sullivan, Executive Director of the Humane Society of Canada is quoted saying, "The only people who are going to profit from the passage of this law are lawyers." A constitutional challenge has already been filed. More (National Post 08.31.2005).

    Canadian Judicial Idol? "Some critics are dismissing it as nothing more than Canadian Idol for the legal set as Justice Minister Irwin Cotler seeks public input into who should fill the next vacancy on the Supreme Court...'For the first time ever, submissions from the public will formally be part of the Supreme Court of Canada appointment process,' Mr. Cotler said in a release. But critics say the public input is 'window dressing' because Mr. Cotler will still choose the candidates and the final decision remains firmly with Prime Minister Paul Martin...." More (Globe & Mail 08.31.2005). Comment. Sadly, the critics are probably right. So much that is called "judicial openness" and "judicial outreach" is nothing but a public relations stunt.

    Latest on Roy Moore, "Ten Commandments Judge." "He is a hot property on the evangelical circuit and a potential candidate for governor of Alabama...'He's like Huey Long with religion,' said Jim Zeigler of the League of Christian Voters of Alabama, referring to the legendary Louisiana populist. Moore's high regard among cultural conservatives, a key voting bloc, worries some national Republicans who speculate that as governor, he would erect a new monument and provoke a federal showdown embarrassing to the Bush administration..." More (Kansas City Star 08.31.2005).

    County takes judge to court over refusal to vacate courthouse space. "The Russell County Commission plans to take Probate Judge Al Howard to court, forcing him to vacate his office inside the courthouse...A majority of the commission members said the move is necessary to comply with an order by the Alabama Supreme Court for all courthouses to be secured. Howard said the move is political payback...." More (Columbus Ledger-Enquirer 08.31.2005).

    Courthouse employees charged with theft. "Three Broward County Clerk of Courts employees were arrested and charged with defrauding the county out of more than $9,200...[The complaint alleges that] while working at the copy center, the trio would accept cash from customers and not make a computerized record, instead pocketing a total of $9,268...." More (Sun-Sentinel 08.31.2005).

    Yet another specialized court? "Homeless men and women could have outstanding arrest warrants forgiven by participating in treatment programs overseen by a new court being created in Reno...Only nonviolent misdemeanor offenders would be eligible. Police officers and homeless services providers would steer people to it, and judges could forgive outstanding warrants if the person accomplishes a treatment program designed to remedy some of the conditions that led to the person being homeless...." More (Reno Gazette-Journal 08.31.2005).

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

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

    Boston man hurt in catastrophe? When I was a student at Harvard Law in the mid-1960's one of the things that amazed me was how Boston, Dr. Holmes' fabled "Hub of the Universe," was so "parochial." One of the standard jokes was that if there were a nuclear catastrophe in Europe, the headline in the Boston paper would be "Boston man hurt in European explosion." This came to me today when I came across this story in the Washington (PA) Observer-Reporter about a local judge's special interest in the damages caused in New Orleans by Hurricane Katrina: "When Washington County President Judge Debbie O'Dell Seneca talks about her favorite vacation destination, New Orleans, her face lights up. She calls the Louisiana city 'my second home.' But on Monday morning, her eyes were somber as she spoke of the destruction caused by Hurricane Katrina...She owns time-share property on the top floor of a converted warehouse in the French Quarter, a block off the famous Bourbon Street...."

    Hart County, Georgia gets around to removing Ten Commandments. It took a letter from the ACLU but the Hart County board -- though not without protest --  finally & seemingly with reluctance got around to complying with the Supreme Court's decisions earlier this summer relating to the posting of the text of the Ten Commandments in courthouses. One of the decisive factors was a reluctance to spend public money fighting the issue any further. More (Carolina Channel 08.30.2005). Comment. The broad topic of resistance by lower courts, institutions and individuals to Supreme Court precedents is interesting and worthy of study. The same judges "up North" who might criticize "Southern" judges for resisting enforcement or application of certain decisions, in turn have their own ways -- one might argue -- of "resisting" other decisions, e.g., the decision of the Supreme Court regarding what may or may not be said by candidates in judicial elections. A typical way of resisting used by some courts is to give the decision in question a grudging, strained, or excessively strict interpretation, limiting its effect to cases precisely identical to those in the case decided. An excellent book that touches on this is Karl N. Lllewellyn, The Common Law Tradition: Deciding Appeals (1960), a book I read fifteen or twenty years ago. One can argue that judges who get "too cute" in playing this game are a greater threat to the Rule of Law than, say, a judge who pulls a Tom Cruise ("jumps the couch") & acts "inappropriately" (see, infra). But what if the ethics board members themselves give "too cute" an interpretation to a Supreme Court decision?

    Panel urges removal of judge for conduct in rescuing daughter. We've previously linked to stories about Elkhart, Indiana Judge L. Benjamin Pfaff's troubles with the ethics board over his behavior in "rescuing" his teenage daughter -- a la Judge Michael Douglas in Traffic -- from some people with whom she was associating. Click here. Now a three-judge panel has recommended the judge's removal. More (Indianapolis Star 08.30.2005).

    Feds arrest judge in money-laundering probe. "Federal authorities today arrested a Nassau judge and about a dozen other men after an FBI probe into illegal gambling, extortion and money laundering. Nassau District Court Judge David Gross was arrested along with three members of the Genovese crime family and 11 other co-defendants, the U.S. Attorney's Office said...." More (Newsday 08.30.2005).

    Yet another Judge Judy-wannabe. "Twentieth Television" announces by press release that it is syndicating another TV court show, this one, titled Judge Alex, starring "Judge Alex E. Ferrer, The Only Television Judge to Serve as a Police Officer, Attorney and Judge." More.

    Horsehair wigs, white gloves, garish robes, and fancy neckerchiefs. "One day, this friend of mine came to lectures with a newspaper showing the picture of three Zambian judges wearing horsehair wigs, white gloves, garish robes, and fancy neckerchiefs. Pointing at the picture, he asked the following questions: Do these African judges have to wear these wigs and robes in order to perform duties effectively? Why is it that when the British migrated to settle in North America they discarded the culture of allowing their judges to wear wigs?" From an opinion piece by Y. Fredua-Kwarteng, Ontario Institute for Studies in Education, Toronto, Canada in Ghana Web (08.30.2005). More. Comment. My property law teacher at Harvard Law School, W. Barton Leach, acknowledged world master of the intricacies of Rule Against Perpetuities, liked to toss out little nuggets of practical wisdom. Like this one: "When your opponent asks a rhetorical question, answer it! It's usually very easy to do." And so, Y. Fredua-Kwarteng, I will answer your rhetorical questions. Yes, these Ghanian judges maybe do need to wear those ridiculous wigs and robes in order to perform their duties effectively. We just don't know. But the British migrants in North America & their common law descendants clearly do not. You see, North America was discovered by the Vikings, who had their own distinctive style of dress. See, Viking Men's Clothing. When their style of judicial garb (horned helmets, etc.) was crossed with the British style of judicial garb (scratchy wigs, ridiculous red robes, etc.), the result was something entirely fresh, new and North American -- specifically, in the case of the United States, naked rather than wigged heads (symbolizing openness to light, air and ideas) and stark, simple but flowing black robes (symbolizing the common-ness of the common law with a nod, in the flowing nature of the robe, to the feminine quality of mercy as a countervailing force to the otherwise unwavering blackness of justice).

    Scalia's one-man show hits the road again. "Appointed judges shouldn't be charged with the task of making moral decisions about society's rights and wrongs, because they don't know more than anyone else, U.S. Associate Justice Antonin Scalia told a packed house Monday night at Chapman University. 'Surely it is obvious that nothing I learned in law school qualified me to decide whether there is a fundamental right to abortion or assisted suicide,' said Scalia, 69, an Italian-American father of nine appointed by President Reagan...." More (Orange County Register 08.30.2005). Comment. Like so many public figures before him who lectured on the old Chautauqua Circuit, Justice Scalia (or "Nino," as he is known to those of us on the circuit) has a stock speech that he delivers, with minor variations, over & over again. It's his "Ours is a dead Constitution" speech. His speechwriter appears to be Trent Lott, who coined the equally felicitous & persuasive phrase "the nuclear option" with reference to the G.O.P.'s recent threat to abandon the traditional requirements for ending a filibuster.

    Has Scalia given up on being Chief? During the above-mentioned assembly, he said things arguably suggesting a belief on his part that a) he doesn't have much of a stomach for what he'd have to go through being confirmed and b) he has doubts he'd be confirmed:

"When I was appointed, I was confirmed by 98-0 vote in the Senate," he said. He took his seat in 1986. Today, he does not think he would even be confirmed to a lower court, he said. He also referred to the upcoming battles over Supreme Court nominations, drawing laughter from the mostly legal crowd, which included many judges. "Each year the conflict over judicial appointments has grown more intense," Scalia said. "One is tempted to shield his eyes from the upcoming spectacle."

    Prosecutors provide outline of case against judge. "Prosecutors have provided a look at how they plan to make the case that Pinellas-Pasco Circuit Judge John Renke III's father overpaid and improperly advanced salary to his lawyer son to pay for the younger Renke's 2002 judicial campaign...In 2002, the younger Renke earned a net income of $140,116. The figure was eight times his average net income during the previous seven years at his father's New Port Richey law firm. By comparison, he netted $35,975 in 2001, according to prosecutors' filings...." More (St. Petersburg Times 08.30.2005).

    The Reverend Honorable Judge Penny Brown Reynolds. "[Judge Penny] Brown Reynolds is a jurist who will soon wear two robes. She is looking forward to her upcoming consecration service as an evangelical licentiate, or licensed minister, to the ministry. 'I believe it is God's purpose in my life to be a judge, but I have a calling to serve in the ministry,' she said...By her own account, Brown Reynolds spoke in 78 pulpits last year alone...." More (Atlanta Daily World 08.29.2005). Comment. That a judge should also be a minister & therefore entitled to wear two robes (one presumably on top of the other) may seem unusual, but to this Norwegian Lutheran it is not. Huey Long said, "Every man a King." Martin Luther in effect said Every man a Priest. Presumably there are many judges who are "priests" in this sense.

    Ethics 101 - May a common law judge serve as judge of beauty pageant? "The Miss New Hampshire Scholarship Organization will host a judges certification on Wednesday, Sept. 14 at 7 p.m. at the Marion Gerrish Community Center on Route 102. This is a chance for people interested in serving as a judge in the Miss New Hampshire or other state competitions to become a certified judge...." More (Nashua Telegraph 08.29.2005). Comment. We don't know what the Thomas Aquinases of Judicial Ethics think about this, but common law judges have served as beauty pageant judges and, we believe, dog show judges. Years ago one of the good common law judges I knew judged a few beauty or swimsuit pageants, now sometimes referred to as "scholarship pageants." He found that the skills he employed as a common law judge came in quite handy in judging the young women. And I've discovered that the dog show world and swimsuit pageant world even have their equivalent of Cardozo's The Nature of the Judicial Process. The dog show world's equivalent is Tom Horner's Take Them Round Please -- The Art of Dog Judging. What Tom, a Brit, says of judging, Cardozo didn't say with more eloquence:

When judging you must not be swayed by any consideration, except by the relative merit of the dog in front of you. You have but one duty: to judge the dogs. Forget the handlers, and forget what [shows] the dogs have won previously. Place the dogs as you think they should stand, never mind if the winner belongs to your best friend or your worst enemy. Disregard the fact that you won under one of the exhibitors last week, and that another is judging at the next show. Be completely selfish - please yourself and simply judge the dogs and safeguard your reputation. That is the only way to gain respect from your peers.

But there are differences in recommended techniques between dog show judging, on the one hand, and swimsuit pageant judging and common law judging, on the other hand. Horner says, "Use a 'hands on' approach to properly evaluate a dog's structure." I believe he is speaking literally. Common-law judges, whether judging swimsuit pageants or contested cases, may use only a figurative, not a literal, "hands on" approach. Further reading: BurtLaw's Dog Judging, Jam&Jelly Judging, Etc. - BurtLaw's Law & Swimsuits.

    Judge's cell phone collection. "A cell phone ringing to the tune of Pachelbel’s 'Canon in D' is not music to Judge Reginald Lloyd’s ears...Lloyd has about 10 cell phones in his collection from those who weren’t willing to pay the $200 fine he charges to get them back. He keeps some on his desk and the rest on the bench...Several years ago, Judge James Williams held a juror in contempt when her cell phone went off three times in a Kershaw County courtroom, Fifth Circuit Deputy Solicitor John Meadors said. The juror, who spent a couple of days in jail, told the judge she had a business and could not turn off the phone, he said...." More (The State 08.29.2005).

    Aussie top judge: okay to criticize judiciary, even unfairly. "Justice Ronald Sackville [head of the national judges association] says he agrees with the Law Reform Commission that there is no evidence that public confidence in the judiciary is significantly impaired by baseless allegations made in the media or elsewhere against courts and judges...'Current laws...too often place courts in a position where they can be seen as literally judges in their own cases,' he says. 'It is difficult to deny that contempt for scandalising the court...bears the hallmarks of a doctrine designed to provide special protection for courts against harm that is more imaginary than real.'" More (Sydney Morning Herald 08.29.2005).

    Judge explains what he looks for in making decision. "[T]he judge explained what to look for -- a smooth body and ears far back behind their eyes...." The judge, of course, was explaining rabbit judging to kids at a VT fair. More (Burlington Free Press 08.29.2005).

    Freud 101: Legislature's love-hate relationship with judiciary. "Witness the polar ends of a love-hate relationship between two branches of government: Three months ago, legislators wanted the courts to butt out. So they called for a constitutional amendment that would block judges from overturning Texas' ban on gay marriage. This month, attention is on school funding and tax relief. Yet another special session has ended in a stalemate. Now, unable to agree among themselves, many lawmakers want the judiciary's guidance...For all the rhetoric about keeping judges in their place, legislatures often rely on courts for a jump-start when the political process stalls. Why? The motive most often cited is self-preservation...." More (San Antonio Express-News 08.29.2005). Comment. Often legislators want a bill on a specific subject but can't agree on coverage. Rather than give up, they'll compromise on vague language & kick the problem to the courts, letting the courts figure out what the bill means on a case-by-case basis. Courts, by the way, are good at that sort of thing. The late Chief Justice Roger Traynor of the California Supreme Court wrote a helpful article that I read a number of years ago on this subject with the felicitous title of "Statutes Revolving in Common Law Orbits." Still worth a read.

    More on Freud & love-hate ambivalence. "Many everyday examples suggest a greater occurrence of shifting and ambivalence in the love/hate binary than we may assume. Shifting can be observed in young kids, most notably boys, for when they 'love' someone, they often express it through 'hate' -- aggression and hostility. This condition is not exclusive to children, as Shakespeare cleverly captures in his portrayal of the eternally bickering Beatrice and Benedict in Much Ado About Nothing. Although Beatrice and Benedict are in love throughout the play and marry at the work’s conclusion, they have only hate expressions and insults to offer one another throughout their interactions...." William L. Hwang, The Physical Laws1 of Emotive Binaries: The Development of An Analogy Between Freudian Psychoanalytic Theory and Physics (Eruditio Spring 2004).

    Headline: Convicted con man arrested after ignoring federal judge. More (The Oregonian 08.29.2005). Comment. We believe it a basic rule of etiquette not to ignore a federal judge -- or, for that matter, a state judge. This applies to everyone, not just con men. Moreover, we think it wrong to ignore anyone who has a claim on our attention, absent some special circumstance justifying the affirmative act of ignoring. In this, as in all, the standard judicial "totality of the circumstances" test applies.

    Judge storms out of makeshift courtroom. "The ecclesiastical court trial of the Right Reverend Dr Nolbert Kunonga, an Anglican Bishop and strong supporter of President Robert Mugabe, took an unusual twist when the judge appointed to hear the matter stepped down. Malawian Supreme Court Judge James Kalaile was appointed by Archbishop David Malanga, head of the Church of the Province of Central Africa, to hear the case. Judge Kalaile and his two assessors stormed out of the makeshift ecclesiastical courtroom last week in protest over the conduct of the prosecution team, which he accused of failing to follow the laws of procedure when it would not give the defence details on the charges faced by the bishop..." More (Legal Brief 08.29.2005). Comment. The normal rules of etiquette ought to apply to judges, too. We think, in general, that too many people are storming out of rooms these days. It's rude, in most cases. It's also ineffective, in most cases. Sometimes it's more effective to quietly leave the room, leaving an eloquent auditory vacuum behind. Indeed, sometimes it's effective to not even enter the room. My dad, a small-town banker, used to work the sideline first-down chains as a volunteer at high school football games in my hometown, Benson, MN, during the era when the legendary Leon Brockmeyer was head coach (one year his team went undefeated, untied and unscored-upon). I got to know Brock well: Brock was one of my main mentors/father figures -- as boys summer recreation director, golf instructor, world history teacher, track coach, & father of a brilliant classmate of mine, Dr. Gretchen Brockmeyer, who is a college prof & administrator at Springfield College in Massachusetts. Anyhow, Brock was a master psychologist. Dad said once Brock was furiously disappointed with the performance of his team first half. Dad was in the locker room at half-time with the team, which was customary. Time passed & Brock didn't show up. Dad said that soon the boys started talking. "Boy, Brock must really be mad at us! He's not even coming here." Dad said the boys blew the other team off the field in the second half.

    'Surfing Judge' now surfing in Heaven. "Retired Judge Robert Gardner, the 'surfing judge' known for his lively legal opinions and plain-spoken justice, died in his sleep Saturday. He was 93. The Corona del Mar resident spent 60 years on the bench, including a three-year stint as chief justice of Samoa. Judge Gardner used words like 'craw' and 'dried cow bezoar' in his legal opinions. His untrimmed eyebrows were so bushy, he'd joke that he didn't need sunglasses. He penned The Art of Body Surfing, one of the earliest books on the subject, in 1972, becoming an authority on the sport...." More (Orange County Register 08.29.2005). Comment. The entire obituary is worth a read. This guy was one of a kind. His daughter says that in matters of death he was "a minimalist" & did not want a funeral, etc. My kind of guy.

    From Tales of the Surfin' Judge. The judge apparently used to write a column for the Newport Beach and Costa Mesa Daily Pilot titled "The Verdict." Here is a brief excerpt that ought to tantalize you enough to get you to click on the link to the story:

When I was the Newport Beach city judge, I used to keep my surfboard at the women's section of the city jail. The women's section was almost never used. In those days we simply didn't put women in jail for the same offenses as men....The reason I kept my board at the jail was that after court I could take my board a few yards to the Newport Pier and surf...It was because of that practice that a funny thing happened one day. I was surfing after court when a policeman came out on the pier and said that an irate woman was in the police station complaining about a parking ticket and demanding to see the judge.

So I paddled in, lugged that big, heavy board to the women's section of the jail and dressed for court. However, rather than get completely dressed I just put on a shirt, tie and coat because I meant to go back to the water as soon as the court session was over. I left on my trunks and didn't put on trousers and shoes. Sitting behind my desk I would look completely dressed. I couldn't see any sense in getting completely dressed, undressed and dressed for a session that couldn't last any longer than a few minutes.

And so I sat behind my desk and called the police department to send in the irate woman. While I waited I could hear her clomping up the stairs from the police station to the city hall. She sounded like Godzilla, an irate Godzilla coming up those steps. When she came into the courtroom she looked for all the world like Groucho Marx's Margaret Dumont -- large, demanding, imperious. She came charging across the room with fire in her eyes....

    'What is a sofa bed?' - or smart judges, dumb questions. "Judge Seddon Cripps interrupted a fraud trial last week in St Albans, Hertfordshire, to ask what a sofa bed was. When a witness replied with a brief description, Cripps, who lists 'walking slowly' as his hobby in Who’s Who, replied: 'How can a bed be turned into a sofa?'" The Sunday UK Times has a funny piece listing a number of such questions by out-of-touch judges -- "out of touch," that is, with contemporary pop culture. Here are a few: "What is a futon?" "What is a Teletubby?" "What is a lunchbox?" "Who is Pele?" More (The Sunday Times 08.28.2005). Comment. I am reminded of President George H.W. Bush's campaign "I'm an ordinary guy" foray into a supermarket in 1992, when he marveled at a checkout scanner. Note: Some people (click here) claim this incident is an urban legend not based on actual fact. But I seem to recall seeing a clip of the incident on TV.

    Conservatives want Oregon's top judges elected by district. "A political brawl is brewing over the way Oregon chooses its top appellate judges. A national conservative group has begun collecting signatures to force a statewide vote on whether state Supreme Court and Court of Appeals judges should be elected in districts rather than statewide. In 2002 -- the last time the idea was on the ballot -- Oregon voters narrowly rejected it...." More (The Oregonian 08.28.2005). Comment. Proponents apparently are saying it will bring geographic diversity to the court, but opponents say that it will make it easier & cheaper to elect agenda-driven candidates. Minnesota's court of appeals (but not its supreme court) has a hybrid membership. Six but only six of its members must come from specific congressional districts & can be opposed in the election only by lawyers from the specific districts; however, all voters get to vote in any of the contested elections. The system is a foolish one that, I seem to recall, was the price of support of some outstate legislators for establishing a court of appeals.

    Iranian judges to carry guns - four attacks on judges in four weeks. MSNBC reports (08.28.2005) that an Iranian judge has been shot in the face & is fighting for his life. This is the fourth serious attack on judges in four weeks (one stabbed to death, one shot to death, one disfigured by acid). Some or all of the attacks are believed related to the judiciary's role in the enforcement of the government's strict clerical rules. More.

    The politics of gubernatorial appointment of judges. Gov. Robert L. Ehrlich Jr. of MD appointed a three-member panel to come up with three finalists for a district court opening. It is clear he wanted his close friend, an attorney named Kevin Kelly, not a member of the governor's party, to be one of the finalists. The panel didn't comply with the governor's wishes. Now nine months have passed & the governor hasn't picked any of the three on the list. The Baltimore Sun (08.28.2005)comments: "The episode provides a glimpse into the often-hidden world of judicial politics. On one side is a local power structure that has coalesced around a favored candidate. On the other is a first-term governor who does not back away from fights and rarely demonstrates a taste for compromising or deal-making. Stuck in the middle are the users of the court system in Allegany County. The criminal docket is being scheduled into January, when normally cases would be heard in November, court officials say...." More. Comment. We all know how a lot of these "panels" work around the country. Governors often have a way of getting their favorites on the short list. It didn't work that way here & the governor is simply responding as politicians often do, playing hardball. P.S., governors also have been known to do what needs to be done to ensure that certain judicial wannabe's don't make it on the short list. Then the governor can say to them, "Gee, I wanted to appoint you but you're not on the list."

    More on the J.A.I.L. folks. "A judge could go to jail for handing down a court ruling in South Dakota that someone disagreed with if an effort is successful to put the Judicial Accountability Initiative Law (J.A.I.L.) on the ballot...." More (Sioux Falls Argus-Leader 08.28.2005). These intiatives, which one reads about occasionally, seek a "Judicial Accountability Intiative Law" (the group's slogan is an unfortunate acronym-based one, J.A.I.L. for Judges) creating "special grand juries to investigate complaints against judges." Comment. I don't agree with the complainants' assessment of the problem or their proposed solution, but I have been arguing publicly for some time that, while judicial independence is a necessity, you can't expect to have it or to have public support for it without significantly greater judicial accountability. See, BurtLaw on Judicial Independence & Accountability.

    Judges ask to smoke despite smoking ban. " Some local judges are unhappy about East Baton Rouge Parish's tough new anti-smoking ordinance, claiming they need security to leave their offices to smoke outside...[But] '[i]f they require security, then whoever is assigned to guard them while they are on smoking breaks will direct claims against them for subjecting them to the second-hand (smoke) exposure,' [Susan Boudreaux, administrative assistant to Mayor-President Kip Holden] said...Metro Councilwoman Lorri Burgess, who authored the smoking ban ordinance, said she's not in favor of changing it so that judges can smoke in their offices. 'I see judges in the grocery store, in Wal-Mart and on golf courses, and they don't have any security with them then. I think this security issue is just an excuse,' Burgess said...." More (Baton Rouge Advocate 08.27.2005). Comment. Anyone who has worked in government knows that there are people with authority who have clever ways of getting around the smoking bans. This story reminds me of the stories last fall about some judges and other public officials who felt they were so important that they ought to (and did) get first dibs on the limited number of flu shots available. Those stories prompted a reasonable suggestion in a letter to the editors of the Detroit News: "The federal government should be mandated to provide yearly flu shots for all. To ensure this mandate, the president, federal judges and Congress would get their flu shots last...." More (Detroit News 10.29.2004).

    When judges do battle over perks. "A Columbus judge has dropped his two-month court battle to get a parking space for one of his employees - saying he'll give his court reporter his own spot. Superior Court Judge Frank Jordan filed paperwork Friday dropping a court order he filed in June seeking an extra parking space in a courthouse garage. Jordan said the reporter, Kathy Bostic, transports evidence to and from the court and that losing that evidence could harm a case...." More (Macon Telegraph 08.27.2005). Comment. Battles like this are always amusing.

    Highest paid judge will get $5 million or so pay increase? Broadcasting & Cable reports in its latest issue that America's highest-paid judge, Judge Judith Scheindlin, will get a bump in pay that will put her in the $30 - $35 million range. She also reportedly is lobbying for some prime-time editions of her conciliation court show on CBS TV.

    Half of lawyers say judges take bribes. "Almost half of the [Philippine's] lawyers know of judges that accept bribes. But most of these lawyers are afraid or simply resigned to the situation, they prefer to keep mum than expose the rot, this is according to survey results released yesterday by the Social Weather Stations. In a sampling of 400 lawyers in four key cities, 49 percent of them said they were 'aware' of magistrates in their locality who are on the take, but only eight percent of these lawyers had the courage to report the bribery, the SWS said...Supreme Court Information chief Ishmael Khan said [that] 'the fact that talks of corruption abound shows that the lawyers are not aware of incidents of corruption themselves, or they only heard it from somebody else, or have no proof about it....'" More (Philippine Daily Inquirer 08.27.2005).

    Latest on allegations against judge who jailed juror. We've previously linked to a number of news reports about Broward Circuit (FLA) Judge Eileen O'Connor, the so-called "prankster judge," who jailed a 19-year-old "because he allegedly lied about his arrest history during jury selection" & then faced allegations that she herself had failed to disclose information she should have disclosed on her application for a judgeship, allegations she denies. The latest is that O'Connor "is the subject of a state judicial ethics probe into [the latter] allegations[, to wit] that she failed to disclose on her application to become a judge that she had been the subject of two discrimination complaints while a supervisor in the U.S. Attorney's Office in Fort Lauderdale...." More (Tuscaloosa News 08.27.2005).

    Who pays when a judge is in trouble? "The city of Santa Fe is paying almost $20,000 to defend Municipal Court Judge Frances Gallegos against allegations of misconduct leveled by the state Judicial Standards Commission. City Manager Mike Lujan said he signed the contract earlier this week that will pay Gallegos' lawyer, Aaron Wolf, for the defense. The money will come out of the court's budget, he said...." More (The New Mexican 08.27.2005). Earlier: Judge denies wrongfully altering records.

    Annals of Norwegian greatness in all things. "Norwegian Supreme Court Judge Ole Bjørn Støle has been appointed supplementary judge to the [Hague] War Crime Tribunal by the United Nations General Assembly...." More (Norway Post 08.26.2005). Comment. In fairness, we add that "Professor of Criminal Law at the Helsinki University Raimo Lahti has been elected as ad litem judge to the International Criminal Tribunal...." More (Finn Ministry of Foreign Affairs 08.25.2005). But note: We have uncovered no evidence that any Swede has been so elected.

    MN man gets probation for threatening to firebomb judge's house. "A Hugo man was ordered to serve five years on supervised probation for threatening to firebomb the house of a Washington County judge...." More (St. Paul Pioneer-Press 08.26.2005). Compare, Jury acquits man of threatening to blow up judge's house. (Canton OH Repository 08.26.2005).

    Trailer park justice? "A rainy winter delayed the new South [Santa Clara] County [CA] Courthouse currently under construction in Morgan Hill and added another $200,000 in cost to the already expensive project...The county abandoned the San Martin Courthouse complex at Monterey Road and Highland Avenue because mold was discovered in the building. Judges are currently using trailers on the site to conduct hearings. Judges at the South County Courthouse could not be reached for comment...." More (Gilroy Dispatch 08.26.2005).

    More on Judge Donna Mills. Two days ago we posted a piece titled Judge's beau arrested - the perils of judicial vanity plates. Today comes news that the judge in question, Donna Mills, has been censured by the judicial ethics board in N.Y. for inappropriate conduct in connection with her arrest for drunk driving in 2002, notwithstanding the fact she was found not guilty of criminal charges stemming from the incident. More (N.Y. Times 08.26.2005).

    Is Roberts too nice (cautious) a guy to do anything crazy? "I don't know if we can take him at his word about the compelling value of stare decisis (the notion that precedent is not overturned cavalierly), but I do know that while a guy afraid of smoking pot or endorsing Michael Jackson may not be the guy you want to do body shots with, he's probably not a constitutional wrecking ball, either...." More (Slate 08.16.2005). Thus did Dahlia Lithwick conclude 10 days ago that Justice-to-be John Roberts won't vote to reverse Roe v. Wade. As you may infer from her conclusion, she bases it on her supposition that he never used pot because he knew then it might come back to haunt him at confirmation time. Her piece contains the following amusing speculations on some of the other justices' relations with pot:

William Rehnquist would have lectured his roommates for getting high, and Antonin Scalia would have gone one step further and narked on them. David Souter can never have known anyone capable of procuring anything stronger than ginger ale for him. Which is why my money would be on Stephen Breyer -- but only if he mistook a joint for a celery boat or something.

Comment. Hmm. Back in the 1960s Bill Clinton was thinking about the possible effects of his draft deferment on his plan to be President. But that aspect of his character wouldn't have served as a reliable predictor of, say, his relationships with women -- or of many other things. By the way, I guess I was like John Roberts in relation to marijuana back in my youth -- assuming Lithwick's correct in her supposition about him. One November day in 1966, my third year at Harvard Law, I was present in the apartment of two classmates when they lit up a joint. I suddenly remembered I had something to do elsewhere and I vamoosed quickly. I not only didn't take a puff, I didn't want to be caught in the same place where people were taking puffs. Did that make me "conservative," in some way, then? Yes. But I also publicly opposed the Viet Nam War, long before I started law school and long before it became popular to do so. I suppose that makes me a "liberal" back then. Or does it? My parents, both lifetime Republicans, also opposed the war. In any event, some of us who were somewhat "conservative" then like what Robert Frost said about himself -- that he was conservative in his youth so he could be radical in his old age. Had I been on the Court then I doubt I'd have found a personal right to an abortion in the Constitution, but as a legislator I would have supported abortion rights, as many legislators then were doing across the country. But now, regardless of my views then on Roe v. Wade, I'd likely vote not to overrule it.

    Is Roberts too much his own man not to be a judicial independent? Maybe this is a question Lithwick ought to be asking. One thing that strikes me about Roberts is his skill (or is it luck) at finding good mentors, good father figures, to guide him on his way. After Thomas Wolfe, the great novelist of adolescence, died at age 38 in 1938, someone remarked to his editor Maxwell Perkins that Tom was lucky that Perkins had discovered him & that others had guided him. Perkins said, "No, Tom had the wits to find us." I think Roberts had the wits to find the many people who mentored him, including professors like Larry Tribe, judges like Friendly and Rehnquist, and the many executive branch players who have cleared the path for him. The question I think needs asking is whether he'll feel in any way beholden to those who've helped him. I think -- and hope -- not. I say this because it is seemingly inherent in strong mentor-mentee relations for the student to "break" from the ones who were his strongest mentors. Inherent in a deeply Freudian way. He, I believe, sooner or later will begin to break those silken ties that hold him and his views to them & their views. Indeed, his "confidential" Justice Department memos reveal a need on his part to do that -- I refer, e.g., to the ones needling Professor Tribe & poking fun at Justice Rehnquist. Robert Lowell, in his Notebook - 1967-68, has a poem he wrote about his friend Gene McCarthy's 1968 Presidential bid, when he challenged President Johnson in the primaries. There's a line I like in there about Gene's willingness to smash the baseball past those who built the ballpark. I predict at some point, as he feels his independent oats, Roberts will smash the ball past those who built the ball park.

    Mexico's judges get guards. "The government has assigned bodyguards to at least seven federal judges and magistrates after death threats were made against them in recent weeks, an official who oversees the federal judiciary said Wednesday...Elvia Diaz de Leon, head of the Federal Judicial Council, said the judges under threat are overseeing cases involving drug gangs...." More (Houston Chronicle 08.25.2005).

    "Can you hear me now?" "A federal judge has ordered that a man accused of plotting to blow up a Chicago courthouse be fitted with a hearing aid before he goes on trial. U.S District Judge John Keenan says the case is serious and Gale Nettles is 'entitled to hear what people have to say about him.' Prosecutors contend Nettles planned to sell fertilizer -- which is used in making bombs -- to terrorists in a plot to blow up the Dirksen federal building...." More (KWQC6 08.25.2005).

    Fire-bombed courthouse needs major repairs. "Pembina County's fire-damaged courthouse won't reopen for at least another month, and it may cost $800,000 to repair the courthouse and a nearby law enforcement center, state and county officials said...A Hensel farmer, James Thorlakson, is being held in the Walsh County jail in Grafton on $1 million bail, on charges that he set the buildings afire last week after shooting at sheriff's deputies who had tried to serve him with a domestic violence protection order...." More (Grand Forks Herald 08.25.2005).

    Justice Stevens says 'Gotcha!' "It is not every day that a Supreme Court justice calls his own decisions unwise. But with unusual candor, Justice John Paul Stevens did that last week in a speech in which he explored the gap that sometimes lies between a judge's desire and duty...." More (N.Y. Times 08.25.2005). Comment. In a speech to lawyers in Nevada he basically said he didn't like the results in the controversial eminent domain case and the medicinal marijuana case but that he is a textualist & had to vote to decide the cases as he did despite his personal desire to reach different results in the cases. I guess he's in effect saying to the Court's textualists & originalists, "Gotcha!"

    Iran's top judge says to subordinates: 'You're independent." "Iran's Judiciary Chief Ayatollah Mahmoud Hashemi Shahroudi said although the responsibilities of a judge are described as 'state duty,' their decisions are independent. Speaking to a group of judicial officials in the northeastern province of Khorasan Razavi, Ayatollah Shahroudi called on judges not to feel intimidated while supervising the activities of state bodies when passing a ruling to that effect, ISNA reported...." More (IranMania 08.25.2005). Comment. Daily I see evidence that countries around the world have adopted the rhetoric of judicial independence & accountability & that many people in these countries seem to be sincere in their desire to improve their courts. As this story illustrates, even the Islamic fundamentalists in Iran are using the rhetoric of judicial independence. Meanwhile, our own fundamentalists have all but abandoned the rhetoric of judicial independence. Instead, many of them are saying we live under a "judicial autocracy" (which is absurd) & one of them, Rev. Marion Gordon "Pat" Robertson, J.D. (not the best advertisement for Yale Law School) seems to be in the business of issuing his own sort of "fatwahs" that are not that different from the Ayatollah Khomeini's since-withdrawn fatwah against the author Salmon Rushdie. See, Robertson Assassination Remarks Not New (L.A. Times 08.25.2005).

    Ninth Circuit: threat to kill judge not protected speech. "Call them out-of-control activist judges, but a three-member panel of the 9th U.S. Circuit Court of Appeals said Tuesday that there's no First Amendment right to offer a person money to kill a federal judge...." More (The Recorder via Law.Com via Yahoo 08.25.2005). Comment. More evidence of a "judicial autocracy"? :-)

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

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

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.

Affiliated Web sites

Favorite Websites
Coming soon