The Daily Judge
© 2005 Burton Randall Hanson
       Archives - 12.08.2005 - 12.17.2005
"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 non-profit pro bono publico First-Amendment protected "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great legal importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly  labelled "Comment."

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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, 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.

    Judge facing misconduct hearing resigns, saves pension. "Suspended Wake [County] Judge Evelyn Werth Hill [57] will resign, effective Jan. 31, under an agreement that preserves her eligibility for a retirement package worth more than $60,000 a year...Earlier this month, [North Carolina) Chief Justice Beverly Lake Jr. suspended Hill as she faced allegations of professional misconduct for the third time in the five years she has served on the bench...Because her tenure ends voluntarily, she will receive $60,732 a year in judicial retirement instead of the $25,200 a year she would have received in a regular state retirement. That lower amount would have been based on the salary she received as an assistant district attorney for more than 20 years...." More (News-Observer 12.17.2005).

    Prosecutors & judges, judges & prosecutors. As we've pointed out before, a disproportionate number of prosecutors become judges. It's also true that judges occasionally become prosecutors. Excerpts from two stories in today's news illustrate the point: a) [T]he developing Republican primary contest to replace retiring Judge Betty Caton on the 296th District Court bench [in Texas] contains an unusual and potentially dramatic political element. John Roach Jr., 35, one of the candidates, is the son of former judge and current Collin County District Attorney John Roach...." More (Dallas Morning-News 12.17.2005). b) "[Dallas] County Criminal Court Judge Dan Wyde resigned Friday and announced that he will be a Republican candidate for Dallas County district attorney. The [Texas] state Constitution requires judges to resign before they can become candidates for a nonjudicial elected position..." More (WFAA 12.17.2005).

   Judge ok's bar featuring bikini-clad women doing 'private expressive dances.' "Owners of a Valrico bikini bar celebrated Friday when a U.S. magistrate judge said it looks as if the county has no grounds to stop it from opening. Jamie Rand, principal for bar owner Gemini Property Ventures, sat in court and smiled as Judge Mary Scriven gave her closing comments. 'This is just the beginning,' Rand said. 'Government gone wild. I'm glad that this judge was able to see through it.' Rand said he wants damages of as much as $20-million and plans to file a second suit for it...." More (St. Petersburg Times 12.17.2005). Comment. We've been on the lookout for heart-warming stories of judges issuing rulings reflecting the Christmas spirit of Peace and Joy for everyone. I guess we can significantly alter the facts of this one a bit and turn the story into a script for a made-for-TV (cable, that is) Christmas movie.  Here's a proposed "treatment" of a story we'll call Hard Times at Christmas:

Looks like a bad Christmas for all the lonely men without women in their lives. The city, with its stunning announcement that it won't allow a bikini bar to open, has crushed the hopes of these men -- as well as the hopes of unemployed young women who look good in bikinis, once took group lessons in tap dance or ballet, and like to express themselves in the First Amendment-protected artistic medium known as "the dance." What to do? Enter heroic down-at-the-heels lawyer: "I'm so offended by this Scrooge-like behavior that I'll take the case for free -- all the way [to the U.S. Supreme Court], if need be." Fast-forward to courtroom scene: Freedom-loving female U.S. Magistrate says: "We judges typically express our opinions in writing. I'm going to express mine through 'the dance.'" Judge removes robe, revealing a skimpy red and green polka-dot bikini, and proceeds to dance around the court's Christmas tree to a popular Jimmy Buffett-like song about "Christmas-green Daiquiris/ growin' on de trees." Judge says, "Oh, by the way, you guys not only get to open the bar but the city has to pay you $10 million dollars, on condition you make this the best Christmas ever for all those poor lonely old men and poor unemployed wannabe free-speech-loving female dancers. Winning attorney looks up at portrait of Clarence Thomas and the other Supreme Court Justices hanging above the bench and winks, saying, "Thanks, Clarence."

Addendum. This being the proverbial "teachable moment," here's a quickie related to the above, excerpted from a longer entry of ours on our political opinion website dated Friday, 09.23.2005 and titled Judge dismisses indecency charge against nude protester (scroll down):

For a summary of the caselaw on nude dancing as a protected form of free expression, see, David Hudson, Nude Dancing - Overview (First Amendment Center). I've always been a tiny bit skeptical of claims of constitutional protection made by bar & strip club owners, but I'm also mindful that my main judicial hero, Justice Holmes, enjoyed patronizing risque burlesque shows & was heard to say on more than one occasion relating to this interest of his, "I thank God I'm a man of low taste." Let's put it this way, I'm more interested in defending on First Amendment grounds conduct such as [the nude protester's], given the political nature of her act and the circumstances surrounding that act, including that it took place in a public place well-known as a public forum with the widest tolerance for the diversity of free expression & protest....

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

    Law clerks as Grinches, speaking -- what? the truth to power? "In 1988, as revealed by a file in the papers of the late Justice Thurgood Marshall, a group of law clerks petitioned Rehnquist citing their 'concern about the Court's celebration of Christmas.' The clerks objected to the Christmas tree itself, as well as the Christmas party where Christmas carols are sung. Noting that 'some of us do not object at all to these observances,' the clerks said that 'all of us are concerned that members of the public, as well as Court employees, may be offended by them.'...Marshall's papers indicated no reply from Rehnquist, but the party proceeded as it has every year since. As he apparently did every year, Marshall sent a note to Rehnquist declining the invitation: 'As usual, I will not participate. I still prefer to keep church and state apart.'" According to Tony Mauro, writing in Legal Times (12.16.2005), C.J. Roberts is following the Rehnquist precedent & the annual party is today. Comment. This sort of stuff -- domestic crises within "the Court family" -- always amuses us greatly.

    'I'm dreaming of a Rehn-Quist-mas,/ Just like the ones....' In a piece in The Atlantic in April 2005 titled Rehnquist the Great? Jeffrey Rosen described Rehnquist's Supreme Court Christmas Parties thusly:

In his thirty-four years on the Supreme Court, William Rehnquist participated enthusiastically in the annual Christmas party for the justices and their clerks. "He and I wrote the Christmas show the year I clerked for him, in 1975," recalls Craig M. Bradley, who now teaches law at Indiana University. One carol that year was sung to the tune of "Angels From the Realms of Glory." It went like this: "Liberals from the realm of theory should adorn our highest bench / Though to crooks they're always chary / at police misdeeds they blench." ("The word 'blench' came from Rehnquist," Bradley says. "I didn't know it meant 'blanch.'") The members of the chorus then fell to their knees and sang, "Save Miranda, save Miranda, save it from the Nixon Four." The so-called Nixon Four were Supreme Court Justices Warren Burger, Harry Blackmun, Lewis Powell, and, of course, Rehnquist.

Here's a recollection by Craig Bradley in the November 2005 ABA Journal:

One of the jobs that fell to the junior justice in those days was planning the Supreme Court Christmas show. Rehnquist and I conspired in this. The show was called "The Making of a Justice, 1975." It recognized that President Ford was, at that time, about to fill the opening created by Justice William Douglasí retirement. The show consisted of law clerks, representing various lobbying groups, singing to a man in a Michigan football uniform -- representing, of course, Ford, who had played there. The songs were about whom Ford should appoint. These were (mostly) sung to the tune of Christmas carols. The songs included an ode to Rep. Bella Abzug of New York, sung to the tune of "Christmas Bells": "I heard from Bella on Christmas Day, Her old familiar grating bray, Please be a pal, Appoint a gal, Peace on a court thatís not just men."

Comment. Rehnquist was a Swede and, in our experience, Swedes have always made a big deal of Christmas. Stories about Swede judges (who -- God bless 'em! -- never quite measure up to Norwegian judges) making a big deal of Christmas always amuse us. :-)

    Red-faced court of appeals withdraws opinion containing mistake in facts. In the case of Ex Parte Brandy Del Briggs the Texas Court of Criminal Appeals, in an 8-1 decision bearing the name of Judge Cathy Cochran as the author, reversed a conviction of a mother in the death of her child because of ineffective assistance of counsel. When the trial judge read the opinion she realized that the findings quoted in the opinion were proposed findings that the trial judge in fact didn't adopt. A red-faced court withdrew the opinion, promising a corrected one soon -- one guesses the result will not be changed. Details (Texas Lawyer 12.15.2005).

    Is MN's new Chief a caretaker chief? As we noted yesterday, MN's governor has appointed Associate Justice Russell Anderson to replace the outgoing Chief Justice, Kathleen Blatz, who quit. See, Pawlenty picks -- guess who -- an Anderson. Here's a link to a profile of Anderson on the court's website. Comment. Justice Anderson is 63. The appointment fills the vacancy created by Blatz's resignation. MN. Const. Art. VI, Sec. 8, provides: "VACANCY. 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." In other words, if Anderson wants to continue serving as Chief Justice, he will have to run in 2008, when he will be 66 -- i.e., he'll have to run for a six-year term but will not be able to serve out the term, given the statute mandating retirement of judges at age 70. We're not aware of any organized move to abolish mandatory retirement, although we have advocated such a law. See, BurtLaw on Mandatory Retirement of Judges. This all might cause a cynic to ask: Is the appointment in the nature of a caretaker appointment, with the idea being that Anderson will retire during Pawlenty's second term, to be replaced by -- need we provide a name? Ah, but we refuse to be cynical. :-)

    County attorney assails 'race-based' DUI courts. "Maricopa County Attorney Andrew Thomas assailed a Maricopa County Superior Court program for ethnic minorities as unconstitutional Thursday while announcing that he may pursue a federal lawsuit to stop the 'unequal justice.' Thomas' attack was directed at a pair of 'race-based' courts set up to work with Spanish-speaking and Native American defendants who already have been convicted of drunken driving and who are going through counseling and treatment as part of their probation...Presiding Superior Court Judge Barbara Rodriquez Mundell defended the specialized DUI[ying] the special DUI courts do not conduct trials or issue sentences; they oversee post-conviction conduct of volunteer participants who are treated no differently than are those who attend similar sessions in the English-language program...." More (Arizona Republic 12.16.2005). Cf., Judge to get tavern's 'speak English' case (Cincinnati Enquirer 12.16.2005).

    Not one, not two, but THREE nativity scenes on courthouse lawn. The folks in West Texas and East New Mexico are big on Christmas lights and nativity scenes. Here's a story about a courthouse lawn there that features three nativity scenes. More (Clovis N.M. News-Journal 12.15.2005).

    Pawlenty picks -- guess who -- an Anderson. A few weeks ago a story circulated that Associate Justice G. Barry Anderson was the leading candidate to replace Chief Justice Kathleen Blatz, who is quitting as of 01.10.2006. G. Barry is one of three Anderson's currently on the court in this Land of 10,000 Anderson's. See, A Confusion of Anderson's? As early as this morning, people were still saying G. Barry was the front runner. A funny thing happened to him on the path to the Chief Justiceship: Governor Tim Pawlenty, who is married to District Judge Mary Anderson, picked one of the other Anderson's, Associate Justice Russell Anderson. And Pawlenty appointed Hennepin County District Judge Lorie S. Gildea to replace the new chief as associate justice. More (Minneapolis Star-Tribune 12.15.2005) and more (St. Paul Pioneer-Press 12.15.2005). Comment. Of the Anderson's, clearly the best one is the one who was neither viewed as the leading contender nor actually picked by the governor -- Paul H. Anderson. See, Who will/should the governor appoint to fill MN's chief justice vacancy? So it goes.

    Quote-of-the-day. "I remember when we were a free country. There might be people on the jury who don't know how to do a Windsor knot or a four-in-hand." -- Boston criminal defense attorney John C. Taylor, commenting for Boston Globe on story about Suffolk Superior Court Judge Raymond Brassard's instructions to male jurors to wear neckties and to female jurors to "dress appropriately." Bressard is quoted as saying, "The whole system of law benefits when people walking into a courtroom -- witnesses, spectators, defendants -- look at the jury box and see that it's not just the lawyers who are formally dressed." More (Boston Globe 12.15.2005). Comment. Marisela Ramirez, a "family advocate" in the DA's office, says, "Being in a tie and shirt changes the whole jury's mindset." If this might be so, perhaps some "social scientists" ought to conduct some studies into whether this in fact is so and it what ways. Are jurors in suits and ties more or less likely to convict, more or less likely to favor plaintiffs in p.i. cases, etc.?

    Political battle avoided over confirmation of Chief Water Judge. "Chief Water Judge C. Bruce Loble had a quick and easy confirmation in the state Senate Wednesday. Loble appeared before the Senate Judiciary Committee for his confirmation hearing and was later confirmed by the full Senate. He was reappointed to the seat he has held since 1990 by Montana Supreme Court Chief Justice Karla Gray...The Montana Water Court adjudicates water rights claims. It is based in Bozeman...." More (The Oregonian 12.15.2005).

    Rush Limbaugh on press coverage of judge's latest ruling in investigation. "You have to understand, as I have learned, my case is a story just like Iraq is a story and just like anything else is a story, and for the media -- particularly the local media here in south Florida -- there is an action line, and that action line is: Anything bad for me moves the story forward. Anything that happens favorable to me is not considered news because it doesn't move the story forward or it doesn't move the action line...." What the Judge's Ruling Means (On the Rushwire 12.14.2005). Roy Black's press release (P.R. Newswire). Comment. I don't know if "the press" is biased against Limbaugh, but I can say from years of reading/hearing press reports about cases of which I had personal knowledge, "the press" rarely gets it precisely right and often gets it quite wrong.

    Another pro footballer becomes judge. "Former Pittsburgh Steelers player Dwayne Woodruff will be joining the Allegheny County Common Pleas bench sooner than anticipated. Woodruff, 48, was elected to a 10-year term as judge on Nov. 8. But he'll take office sooner than other judges elected that day because the Pennsylvania Senate confirmed his previous nomination to the bench on Wednesday...Woodruff starred as a defensive back for the Steelers from 1979 to 1990...." More (Lexington Herald-Leader 12.15.2005). Related stories. Former NFL player Robert Thomas is Illinois' top judge. See, also, discussion of Associate Justice Alan Page of Minnesota Supreme Court in Who will/should the governor appoint to fill MN's chief justice vacancy?

    Using courts as tool to silence peaceful protest? From Amnesty International's updated report on the situation in the country f/k/a Burma, Myanmar -- Travesties of Justice Ė Continued Misuse of the Legal System:

Amnesty International has long-standing concerns at the lack of judicial independence in Myanmar that has enabled the state to imprison political opponents. Furthermore the organization has repeatedly expressed concern to the authorities about the abuse of due process in political trials, and the denial of basic rights in detention. Individuals are routinely arrested without warrant; held incommunicado and tortured or ill-treated in pre-trial detention. Sentences have been handed down following trials which fall far short of international fair trial standards. For example defendants have been denied the right to legal counsel or to legal counsel of their own choice. Prosecutors have also relied on confessions extracted through torture. Prison conditions continue to be poor, and prisoners are being denied adequate nutrition and necessary medical treatment.

    Former judge barred for pointing gun. "A judge who pointed a handgun at an 18-year-old while searching for his runaway teenage daughter has been permanently barred from the bench by the Indiana Supreme Court. The court said Tuesday it also has suspended former Elkhart Superior Court Judge L. Benjamin Pfaff from practicing law until he pays court costs totaling about $12,000...." More (Indianapolis Star 12.14.2005). Earlier. Judge who did a Michael Douglas resigns in face of likely removal - Removal urged for judge's conduct in trying to rescue daughter -  Judge charged with reprising Michael Douglas' role in 'Traffic'?

    Ex-judge arrested for using expired complimentary railway pass. "R K Shukla, a retired judge of Allahabad High Court, was apprehended yesterday by a railway vigilance team for travelling in an AC 2 tier compartment from Allahabad, allegedly on a ticket bought on an expired complimentary card pass issued to him...." According to a report in Chennai Online (12.14.2005), the ex-judge has made extensive use of the pass, which expired in 2001, making 46 reservations during October-November of this year alone for "travelling between Allahabad and AC 2 tier class. A single journey fare between Allahabad and New Delhi is Rs 991." Comment. A wise man in my hometown, 50 years my senior, used to say to me that there's a bit of larceny in everyone. He also said that if you scratch the surface of a civilized man, you'll find a tiger just beneath the surface. He was as skeptical about human nature as Justice Holmes. And, of course, he was right to be skeptical. The whole Christian religion, with its emphasis on the need for forgiveness and redemption, is based on a profound experience with and skepticism about human nature. We Norwegian Lutherans go a step further, believing that forgiveness and redemption are never merited or earned but given freely throgh something we like to call God's Grace. In this, we part company with Governor Schwarzenneger, who, in denying the clemency petition of Mr. Williams the other day, wrote, "[W]ithout an apology and atonement for these senseless and brutal killings there can be no redemption." This sort of statement, which reflects an unjustified self-pride by a man who is not strong but weak, makes no sense to us, for we believe a) that it is the magnitude of our sins that necessitates a great redemption and b) that redemption is never earned. In this, as in everything else, we Norwegian Lutherans are right.

    Two supreme court justices spent big in retention bids. "The two state Supreme Court justices who faced voters last month spent more than $800,000 combined on the election, the vast majority in the final two weeks before voters turned one out of office and narrowly retained the other...." More (Philadelphia Inquirer 12.14.2005). Comment. Some supporters of the so-called "Missouri Plan," with its judicial retention elections, may be having second thoughts as a result of what happened in PA. See, Judges in PA challenge repeal of controversial pay raises and link to previous entries.

    Trial judge was 'sarcastic, crabbed & rebarbative' but... "The judge, throughout the trial, showed unwarranted irritation. He was sarcastic, crabbed and rebarbative. That he should behave in this way, in a case requiring sensitive handling, is particularly unfortunate. Because of counsel's admirable resistance, we do not think that it led to such unfairness as to cast doubt on the safety of the verdicts." Lord Justice Moses of London's Criminal Appeal Court commenting on behavior of Sheffield Crown Court Judge David Bentley, QC, while affirming child-sex-abuse conviction of one Christopher Mark Davies. More (Sheffield Today 12.13.2005). Comment. Judge Bentley's statements quoted in the story are priceless, like something a "crabbed" judge on an episode of Rumpole might say. Compare and contrast, More on 'grumpy' judge reversed for third time in two weeks (on another rude British judge, named Medawar). Query. "What's 'rebarbative'?" It was The Mavens' Word of the Day for 07.16.1999.

    Judges go on strike over dismissal of Supreme Court Justices. "Judges and public prosecutors Tuesday (13 December) began a five-day strike to protest the decision of the dismissal of five judges by the interim government last week. The Haitian National Association of Magistrates (Anamah) said their action is to force the government to rescind its decision to fire the Supreme Court judges. 'The Supreme Court is all is left to this country. We are not going to allow the interim government destroy it,' Anamahís president, judge Jean Perez Paul, said on Tuesday...." More (Haiti.Info.Com 12.13.2005). Earlier.  Judicial independence -- Haitian style.

    Judges who behave like petty despots. "The lawyers know the judges who run courts like petty despots. 'Compañeros' talk about them in whisper, from the side of their mouth if the judge is nearby, or in a loud curse, if he cannot hear them. Short of temper and quick on insults, these judges rant for the slimmest excuse or provocation. One blew his top because the lawyer did not call him Your Honor, as if that omission blew away shreds of his honor. Another fumed because the lawyer submitted a one-page brief, as if a brief must not be literally brief to be called a brief. Still another raged when the lawyer's memo dangled a participle and misplaced a comma...." Now Cebu Regional Trial Court (RTC) Judge Meinrado Paredes has complained publicly, in a speech to young lawyers, about judges who behave badly and suggested that lawyers complain "when the complaint is deserved." Details (Sun-Star Philippines - Editorial 12.14.2005). Comment. Putting a black robe on one person brings out the worst in her, while putting the same robe on another person brings out the best.

    Annual 'Judicial Hellhole' list. The new list of "Judicial Hellholes" prepared by the American Tort Reform Association is out today. 1. Rio Grande Valley and Gulf Coast, Texas; 2. Cook County, Illinois; 3. West Virginia; 4. Madison County, Illinois; 5. St. Clair County, Illinois; 6. South Florida." What are "Judicial Hellholes"? They are "places that have a disproportionately harmful impact on civil litigation. Litigation tourists, guided by their personal injury lawyers seek out these places because they know they will produce a positive outcome -- an excessive verdict or settlement, a favorable precedent, or both." Factors? "A number of factors contribute to a Judicial Hellhole designation, including the prevalence of forum shopping, the willingness of courts to expand liability through novel legal theories, discovery abuse, improper certification of class actions, the proliferation of junk science, strong alliances between plaintiffs' lawyers, judges and attorneys general, and the uneven application of evidentiary rules." More (ATRA 12.13.2005). For a different perspective, see, Association of Trial Lawyers of America.

    Fugitive pens book naming names. "Fugitive billionaire Radovan Krejcir today launched his long-expected book where he describes the criminal cases he was involved in and names the police officers, state attorneys and judges he allegedly bribed...." More (Prague Daily Monitor 12.13.2005). Meanwhile, "Czech President Vaclav Klaus appointed sixteen new judges who will all turn 30 next year which is the minimum age that Klaus had earlier deemed acceptable for judges...." More (Czech News Agency 12.13.2005).

    Quote-of-the-day. "The government surely is not entitled to always have its close friends as judges." - Judge Barrington D. Parker Jr., member of three-judge panel of the United States Court of Appeals for the Second Circuit, during oral arguments on federal prosecutors' motion to "throw a federal judge [Shira A. Scheindlin of Federal District Court in Manhattan] off a case that has become a test of the government's prolonged detention of material witnesses in terrorism investigations." Details (N.Y. Times 12.13.2005).

    'I-Team' makes much of Chief Justice's refusal to talk to reporter. We've been critical of late about all the federal criminal investigations around the country into suspected political corruption, including corruption involving judges, on the state and local levels. See, Two judges incarcerated and comments thereto. Apparently one such investigation may be taking place in Kentucky. Here's a link to a transcript of a WHAS-TV "I-Team" report on what is said to be a federal grand jury investigation into allegations that a Kentucky businessman may have funneled illegal campaign contributions to the campaign of Family Court Judge Debra Lambert, who is wife of KY Chief Justice Joseph Lambert. This excerpt illustrates the tenor of the entire TV report:

Ten days ago, Joseph Lambertís former chief of staff was called to testify before the grand jury. We wanted to hear from the chief justice: what, if anything, did he know about the federal probe? After not returning our phone calls, we confronted Justice Joseph Lambert before a meeting in Louisville. Once inside, Lambert ignored further questions. A spokesman for Lambert says the FBI or federal prosecutors havenít contacted the chief justice.

More (WHAS11.Com 12.12.2005). Comment. Three points: a) We have no way of knowing what is going on with the grand jury. b) Intended or not, reports like this, focusing on the subject's refusal to respond when a mike is stuck in his face in some hallway, tend to create impressions in viewers that may be unfair. A chief justice has no obligation to return a TV reporter's phone calls or answer questions when a reporter sticks a mike in his face in some hallway, and one should not draw an adverse inference from his refusal to talk to a TV reporter. c) The general state of TV news both on the local level and on the national level is very low, as it has been for many years. Cases in point: a) Pryor Restraint (The American Spectator 12.12.2005):

It was the measure of the media on Saturday, December 10, 2005. A tale of two obituaries. Two men who had influenced opinion and events had died, both in the same news cycle. A Richard Pryor and a Eugene McCarthy. Who would take precedence in the newscasts? No contest. The lead was Richard Pryor....

b) News Council backs complaint against WCCO by family at fair (Minneapolis Star-Tribune 12.10.2005) ("News Council member Benno Groeneveld, a freelance journalist, said the WCCO [TV] story was not the result of reporting, but the work of someone who goes into an assignment with a story already in mind and then finds victims to flesh it out").

    Judge Henry Broome. "[Henry J.] Broome is the municipal court judge in [eight towns in Atlantic County]...He earns more than $150,000 a year from the eight part-time judgeships. He also has an extensive private practice. Critics say one reason for Broome obtaining so many judgeships is because he brings in more revenue for towns than other judges. His fines are almost always the highest they can be and are often two and three times what other judges impose...." Judge Broome was the subject of a recent piece of investigative reporting by the Press of Atlantic City that led to some changes in certain practices of his that were questioned. The biggest change? "[D]efendants will no longer be threatened with jail if they don't pay the first $100 of their fine the day they come to court...[M]any defendants threatened with jail never knew Broome was bluffing...." More (PressOfAtlanticCity.Com 12.12.2005).

    Larcenous court employee. "[Pamela King, 38, t]he woman assigned as the gatekeeper for monitoring expenses of the Unified Courts pleaded guilty Monday to stealing more than $64,000 from Madison County [IND] over four years...." More (Anderson Herald-Bulletin 12.13.2005).

    Will new top judge 'shake up' Scottish courts? "Arthur Hamilton[, the newly-named] Lord President of the Court of expected to consider changes that include ending the monopoly enjoyed by advocates -- lawyers who only make court appearances -- in the Scottish courts; computerizing the court system; and opening the courts to television, The Scotsman reported. He may also try to end the rule that allows advocates to be paid for a full day when they make brief court appearances to ask for adjournment...." More (Science Daily 12.12.2005). Comment. The headline for this story ("Judge expected to shake up Scottish courts") reminds me, fairly or unfairly, of this story abot Judge Gus Hand, Learned's cousin: "[A] judge..., without any plan in mind, announced to a press conference that he was about to clean up the courts in his circuit. 'With what?' asked Judge Hand, 'The vacuum in his head!'" Charles E. Wyzanski, Jr., "Augustus Noble Hand," 61 Harv.L.Rev. 573, 581 (1948). More on Gus: "The talk of the average conservative about the movements of the day is distressingly ignorant and can hardly be exceeded in intolerance or stupidity by that of the liberal who advocates everything that involves change and has the imprimatur of the 'children of the dawn.'" Judge Augustus ("Gus") Noble Hand, "Lawyers in a Revolutionary Age," 18 Pa. B. Ass'n Q. 46, 47 (1946). To a number of different sources has been attributed this aphorism: "Quote Learned [Hand, his cousin] but follow Gus."

    Barak's plan to help prevent politicization of judicial appointments. "Supreme Court President Aharon Barak is not opposed to Professor Ruth Gavison's appointment to the Supreme Court, but rather to her immediate nomination to the highest court following her recent involvement in public campaigns...Barak also contends that it is illegal to convene the judicial appointments committee during an election campaign, and he believes Justice Minister Tzipi Livni will refrain from doing so. Nonetheless, if the committee does meet, Barak intends to oppose all of the nominations, including those of his own proposed contenders, in order to maintain the principle of not appointing judges during the run-up to elections...." Details (Haaretz 12.12.2005). Comment. Barak says that anyone engaged in "the public struggle" (partisan politics?) should not be appointed to the judiciary until he has undergone a "cooling-off period" that is "equal [in length] to that of the candidate's public involvement." We think that every citizen, including every lawyer, ought to be encouraged to participate vigorously in the political arena and that no one who otherwise meets the constitutional requirements for judicial office ought to be rendered ineligible for appointment on the basis of that participation.

    Short opinions are bad? "An advisory panel of the Supreme Court [of Japan] will recommend that the top court not reappoint [Kaoru Inouea, a] judge at the Yokohama District Court known for giving short rulings[,] when his 10-year-term expires next spring...." More (Japan Today 12.12.2005). Daily Yomiuri has more details: It says the 51-year-old judge's rulings fail to provide reasons accepting or rejecting the points of contention. Interestingly, the paper says that "Inoue is known as the author of 'Shiho no Shaberisugi' (Courts Talking too Much)." Comment.  We can't form an opinion as to the adequacy of his rulings without being provided specific examples. Most opinions of appellate judges in this country are way too long, sometimes because a) they tend to hire clerks who picked up bad habits writing for law school law reviews and b) they rely on these long-winded novices to write opinions. Writing longer is generally easier than writing shorter, except that the master of the short opinion (the master of us all), Holmes, made writing them seem easy: he wrote his quickly, typically right after conference, and without significant help from his clerks. His clerks, some of whom were my law school profs, were an exceptional lot, but he used them primarily as legal valets, never as ghostwriters. Some of the best opinion writers in Minnesota tend to be judges on the so-called intermediate court of appeals, a high-volume appellate court. A couple judges on that court whose opinions I admired when I was reading them were Judge Harriet Lansing and Judge Marianne Short (now in private practice), but there were others. I won't comment on current or past Minnesota Supreme Court Justices other than to say that Justice John Simonett, now retired from the court, in my opinion is one of the best writers ever to serve on the court. Here's what I wrote about him several years ago:

 Gentleman John. "It is not often that someone comes along who is a true friend and a good writer." Charlotte's Web by E.B. White (1899-1985). I had lunch the other day with my long-time loyal friend, Justice John Simonett, now retired from the bench but, thankfully, not from legal practice. Justice Simonett, who would be one of my personal picks if I were to assemble an all-time "dream" Minnesota Supreme Court (or any other supreme court, for that matter), was, inter alia, a master of the short, elegant opinion. One of the best "short, elegant opinions" ever written by any member of any court was one he "ghost-wrote" for that famed Swedish jurist, Per Curiam. I suppose I would be breaching an ethical rules if I revealed the name of the opinion, so you'll have to take my word on it. My first mentor in the law, the late Justice C. Donald Peterson, another of my dream picks, wrote of Justice Simonett that he "is thoughtful and unfailingly courteous in court conferences... [h]ighly literate and the court's most graceful writer." The Professional, Public and Judicial Career of C. Donald Peterson 163 (1987). Well said...and true. A naturally witty man, Justice Simonett kept his wit (but not his wisdom) out of his opinions and instead found (and continues to find) a public outlet for it in speeches and short pieces published in bar magazines, etc. In 1998 I compiled many of his witty (and wise) observations in a well-received piece I called "Quotations of Chairman John on Law, Life, and Other Things That Matter (Such as Fishing and Pulltabs)," which was included in a volume on his judicial career published in 1998 by the Minnesota State Law Library as part (No. 11) of its Minnesota Justice Series. I wish I could provide a hyperlink to the piece, but, alas, it is not available online or widely available even offline. (If his law firm was smart, it'd publish it on its website.) One of his more recent speeches is available online and it wouldn't hurt if every member of our troubled profession were to read it. I refer to Civility and 'Generalized Reciprocity' Bench & Bar (Feb. 2003).

    Clean Gene McCarthy. For those who like to know our political biases, we've posted a piece on our political opinion site about Sen. Eugene McCarthy, who died Saturday at age 89.

    Durham courts follow lead of NBA. First, the NBA adopted a strict dress code for players. Now, Durham (nonbasketball) courts say they're serious about enforcing their own code: "'Proper attire required' is what the warning signs say now...However, they are being revised to urge visitors to 'please dress appropriately for court. Appropriate dress DOES NOT include halters, midriff shirts, off the shoulder shirts, gym shorts, short shorts, t-strap shirts or tank tops' is the suggested new wording...." More (Durham Herald Sun 12.12.2005). Moreover, Durham's magistrates soon "may begin wearing black judicial robes." A state court spokesperson is quoted as saying "'It could make magistrates act more professional and look more professional to the public' [and] also could be a recruiting tool at a time when court officials are seeking more magistrates with law degrees." More. Further reading. Judges typically know they should wear robes in court, suits to public functions, etc., but understandably need help in some other areas of fashion, e.g., judicial swimwear. Some of the answers to their concerns about swimwear may be found at BurtLaw's Law and Swimsuits.

    How Huntington almost 'lost' Christmas - or, Judge as hero. "Huntington [CT] officials worked all night readying staff for the coming snow, but instead they woke up to a different storm Friday: a local lawyer [Mitchell Pashkin, 39] sued [in federal district court] to remove a nativity scene from the town's public lawn and stop Friday's Christmas tree-lighting ceremony. [Pashkin claimed] the nativity scene, Christmas tree and two signs on the Village Green that read 'Peace on Earth' violated his constitutional rights because of their religious overtones. The display [also]...included a menorah, which Pashkin [said] was 'dwarfed in significance and stature' and 'appears as nothing more than a token attempt to be inclusive to the Jewish population.'" Enter a hero: "Judge Leonard Wexler helped broker a compromise between Pashkin and the town Friday afternoon...The deal calls for the town to put up large signs stating the nativity scene was donated by Huntington's Knights of Columbus[,]...that the menorah came from the Chabad-Lubavitch in Melville...[and] that the nativity scene and the menorah are not town property." More (Newsday 12.10.2005). Comment. And there descended, along with the fluffy light snow, a sighing calm, covering the entire city, which from that day forward never again knew turmoil of any kind.

    Secret tribunals in drug/organized crime cases? "The Guatemalan government said Friday it wants to shield the identity of judges trying drug and organized crime cases to combat corruption and protect the judges from intimidation and violence, Interior Minister Carlos Vielman said he has asked the country's judicial system to assign a group of judges to the cases and not to reveal their names. Judges are now assigned cases within a geographic region rather than by type of crime...." More (Houston Chronicle 12.10.2005). Comment. Apparently the problem is that when judges are identified, some of them are intimidated or bought off by drug traffickers. On the other hand, "'A judge without a face is an authoritarian justice, with little transparency,' said Luis Ramirez, an expert at the Institute of Comparative Studies in Criminal Science in Guatemala. 'We already had this during the war and it didn't work. In Colombia, it also was a failure.'"

    Appeals court slams judge elected on tough-on-crime platform. "[MD] Circuit Court Judge Paul G. Goetzke ignored the law by unilaterally altering an agreed-upon order [in a juvenile case] and fining a defense attorney [for questioning the alteration], a panel of his fellow [circuit court] judges said in a blistering ruling yesterday...[A]t a hearing in October before the three-judge panel, a number of attorneys publicly supported Mr. [Drew] Cochran [the fined attorney], with one calling Judge Goetzke 'nothing but a bully.'" More (Annapolis Capital 12.10.2005).

    Ex-judge in plea deal for possessing child porn. "Former Orange County Superior Court Judge Ronald C. Kline [64] has agreed to plead guilty to possessing child pornography on his home computer, ending a four-year legal battle in which he protested that his privacy rights had been violated by the computer hacker who turned him in to authorities. Kline, who has been under house arrest since 2001, is scheduled to enter his plea to four criminal counts Monday in U.S. District Court in Los Angeles...[and] will face a possible 27 to 33 months in prison...." More (L.A. Times 12.10.2005). Comment. Yet another instance of "the feds" prosecuting a state judge. See, Two judges incarcerated and comments thereto.

    Judicial independence - Haitian style. "Five Supreme Court justices have been fired in Haiti, a day after the court ruled that a Haitian-born US millionaire could run for president. No reason was given for the sudden sacking of around half of the Supreme Court bench. They were fired on the direct orders of the interim Prime Minister, Gerard Latortue, and his justice minister...." More (BBC News 12.10.2005).

    Britain's top court: statements obtained by torture inadmissible. "Britain's highest court thrust itself into the middle of a roiling international debate on Thursday, declaring that evidence obtained through torture -- no matter by whom -- was not admissible in British courts. It also said Britain had a 'positive obligation' to uphold antitorture principles abroad as well as at home...." More (N.Y. Times 12.09.2005). Comment. There's a rule that we like to call, in our clever way, The Golden Rule, an obscure little rule that prompted us to oppose from the very outset the Bush Administration's nice little "end justifies the means" plan to allow the use of torture in interrogating and summary justice in trying "enemy military detainees" in its "War on Terror." One virtue of following The Golden Rule is that it doesn't require a law degree or even much intelligence to follow. Of course, it only helped us in forming our opinion that we knew in our bones that turture just doesn't work. People will say anything to stop being tortured, and therefore what they say is unreliable. If you need fresh evidence of this, see, infra, Outsourcing torture (a/k/a 'rendition' and the path to war. Moreover, those who use torture inevitably hurt themselves, as this posting of ours in the fall of 2001 makes clear:

Learning from Israel. "[I]t was disturbing to hear the recent debate in this country over the idea of using torture on terrorism suspects. The Israeli experience clearly shows that torture and other limitations on civil liberties have not made the country safer; they have made it more oppressive. We Israelis have also learned that curbs on civil liberties rarely turn out to be temporary, even if intended to be: they are all too easily introduced but very difficult to get rid of." From Learning from Israel and Its Mistakes by Tom Segev on the Op-Ed page of the 11.25.2001 issue of the New York Times. Mr. Segev is a columnist for a leading Israeli newspaper. (11.25.2001)

    Outsourcing torture (a/k/a 'rendition') and the path to war. "The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials. The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition...." More (N.Y. Times 12.09.2005).

    Did Sam Alito 'save' Christmas? "'Liberal groups like People for the American Way and the A.C.L.U. have opposed public Christmas and Hanukkah displays and even fought to keep Christmas carols out of school,' declares a radio commercial paid for by the conservative Committee for Justice beginning Monday in Colorado, Wisconsin and West Virginia, states whose senators are considered pivotal votes on Judge Alito. 'Some courts and judges have supported this radical agenda, but not Judge Sam Alito,' it continues...." More (N.Y. Times 12.06.2005).

    C.J. Roberts as 'The Letterman Justice.' The incomparable Dahlia Lithwick has a piece in Slate (12.08.2005) that is worth reading; it's titled The Letterman Justice - John Roberts is too savvy to keep cameras out of court forever. Excerpt:

Not only is he significantly and markedly younger than almost all his colleagues, he's also clearly a product of the Age of Letterman. Whereas his predecessor, the late Chief Justice William H. Rehnquist, with near-impunity loomed goofy gold stripes onto the sleeves of his judicial robe and sicced his court marshals on unwitting spectators in inappropriate garb, the new chief is already making it clear that such acts of deluded grandeur are just not his style. Roberts has publicly eschewed the gold bars, agreed to prompt audiocasting of certain early oral arguments this term, and, in a few short weeks on the bench, he has also landed some of the best one-liners of the year.

Lithwick's piece titled Law Schools Against Free Speech - The Supreme Court considers military recruitment on campus (12.06.2005) is also worth a read. Related entries Listening to justice and A nostalgic look back at another instance of judicial stickling. For our personal take on the military recruiters case, see, our 12.07.2005 entry titled "Life Without Principle" in our political opinion weblog.

    Fast-track court for Christmas. "Anyone arrested for public order or violent offences in Swansea, south Wales, in the run up to Christmas will be fast-tracked through the weekly hearings. Police in Swansea say they always see violent crime rise in December and are piloting the scheme in a bid to send out a tough message to misbehaving revellers. Dedicated magistrates will sit at the court throughout December and will be able to ban offenders from city centre pubs and bars throughout the party season in addition to handing down a sentence...." More (ICWales 12.08.2005).

    Appoint youngsters to high court? "The popular corporate recruitment mantra 'catch them young' seems to have rubbed off on the judiciary. The unwritten age barrier of 45 years for a person to be elevated as a high court judge, breached only occasionally, appears to be on the way out. Chief Justice of India Y K Sabharwal, sitting with Justice C K Thakker in a Supreme Court Bench hearing matters pertaining to the appointment of judges to the Madras High Court, on Friday made no bones about redundancy of age in the elevation of promising and talented 'young' lawyers as high court judges. To achieve zero vacancy, posts lying vacant need to be filled with persons with calibre and there could be no steadfast age barrier of 45 years, Justice Sabharwal said. 'If you do not catch them at the age of 40-45, no way you can persuade them later to accept the judgeship....'" Details (The Times of India 12.09.2005). Comment. We don't know enough about the practicalities of running a justice system in India, but our first reaction to this story is to dub it truly bizarre. Our own views are expressed in detail in a 2000 essay -- BurtLaw on Mandatory Retirement of Judges -- one of the most-visited pages on our original blawg.

    Crying judge sentences priest to probation for abusing teen in 1970s. "A judge broke down in tears Friday as she gave probation to a priest [Rev. James J. Behan] who had a sexual relationship with a teenage student in the late 1970s. 'I've worried about this case for months now and I can't pretend to any one of you that I know what the right thing to do is,' Common Pleas Judge Pamela Dembe tearfully said. 'Where I get stuck is I don't know how to balance one very terrible violation against the 30 years that followed.'" Details (Wilkes-Barre Times Leader 12.09.2005).

    DA says judges trying to silence her claims they waste time. "[Carol Chambers, t]he district attorney for Arapahoe and surrounding counties has complained to...state Supreme Court [Chief Justice Mary Mullarkey] that judges have threatened to retaliate against her for challenging the way they manage their time...Chambers says that many judges in the 18th District keep witnesses waiting too long to testify, allow defense attorneys to ask too many questions during motions hearings, waste the time of police officers and take too many breaks...." More (Denver Post 12.09.2005). Comment. As a former defendant in a civil case (divorce) that went on forever and as someone twice called to jury service in ten years, I have some personal views about the way some trial judges manage or mismanage their time.

    Woman: I was 'just kidding' in threatening to kill Schiavo & judge. "A federal jury convicted a San Francisco woman [Dera Marie Jones, 32] Tuesday for posting a threat on an online message board to kill the husband of Terri Schiavo, the brain-damaged Florida woman who died in March after the removal of her feeding tube...." On 03.23 she wrote on an AOL Schiavo case message board: "If she dies I will kill Michael Schiavo and the judge. This for real!" Her defense: "Just kidding." More (San Francisco Chronicle 12.08.2005). Comment. Oh, I get it. Sometimes it takes me awhile to see the humor in threats to kill. Or in bomb threats:

A pastor says he was "just kidding" when he told airport security he had a bomb, reached into his luggage and pulled out a Bible, declaring, "This is my bomb." Jose L. Gonzalez, a citizen of Spain living in Deltona, Fla., was arrested and charged with making a false statement. The incident occurred as security screeners at the Nashville International Airport were searching his carry-on bag.

More (FOXNews.Com 10.24.2004). One could write an essay on the "just kidding" defense. Here's an illustrative excerpt from U.S. v. Intrery, decided 04.28.2005 by the USAF Court of Criminal Appeals:

The appellantís wife testified that she saw the appellant "pants" her children on many occasions. She said that the appellant would come up behind her children and pull their pants down exposing their underwear or buttocks. She also said that the appellant would "goose" the children by sticking his fingers in their buttocks. Additionally, she said her husband would give the children "titty twisters" by squeezing their nipples and twisting them. She often heard her children tell the appellant to stop or leave them alone, but she thought that the appellant was just kidding around with them. She testified that on many occasions she would wake up in the morning and find the appellant and EKK together in EKKís bed. The appellantís wife summed up her testimony by saying thatshe didnít think anything about the appellant being in her daughterís bed. She testified, "He was my husband. I donít think any wife is going to think her husband is going to be doing something awful to their children."

I guess the notion of "just kidding" means different things to different people, just as the concept "sexual relations" did not include "fellatio" in President Clinton's mind and, to my surprise, in the minds of a large number of younger Americans who were quizzed on the topic -- people for whom fellatio apparently is in the same category as, say, kissing. To wit: a survey was conducted in 1991 (JAMA - abstract) among a random sample totaling 600 students at a large midwestern university, 79% of whom described themselves as politically "moderate to conservative"; of the 600 students, 59% replied that engaging in oral-genital contact with someone did not constitute having "had sex" with that person.

    Man convicted of soliciting killing of judge, others. "A Cincinnati man was convicted Wednesday of soliciting the killing of a federal judge and prosecutor and threatening to have an FBI agent's two children kidnapped. The federal jury, however, found Anthony 'Tony' Erpenbeck Sr. innocent of three similar charges that he threatened the judge, prosecutor and children a second time...." More (Kentucky.Com 12.07.2005).

    State's longest-serving judge suspended for retaliatory firing. "The state Supreme Court has suspended Lake Countyís longest-serving judge, finding that he fired a court employee in retaliation over her testimony in another misconduct case against him. The Supreme Court on Tuesday ordered Lake Superior Court Judge James Danikolas suspended for 60 days without pay for firing Magistrate Kris Costa Sakelaris in 2003...The Supreme Court said the judge fired Sakelaris because of her 'perceived disloyalty' for refusing in a deposition to support Danikolasí decision to unilaterally reverse her contempt-of-court ruling against a man involved in a divorce case...." Details (Indianapolis Star 12.08.2005). The judge also faces a lawsuit in federal court filed by Sakelaris. (Judges enjoy "absolute immunity" from civil suit over "judicial acts" but not over wrongful termination of court employees.)

    Re-indictments in Mississippi judicial bribery case. "Attorney Paul Minor and two former state court judges have been indicted on new federal charges of conspiracy, bribery and fraud. Minor stood trial this summer on charges of using cash, loans, and gifts to secure favorable decisions in cases before Mississippi Supreme Court Justice Oliver Diaz Jr., former Circuit Court Judge John Whitfield and former Chancery Court Judge Wes Teel. On Aug. 12, a federal jury cleared Diaz of all charges and was unable to reach a decision on some charges against Minor, Teel, and Whitfield...." Details (Jackson Clarion-Ledger 12.08.2005).

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

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Affiliated Web sites

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

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

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

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