The Daily Judge
© 2006 Burton Randall Hanson
       Archives - 03.23.2006 - 04.01.2006
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great legal importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."

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

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

 Want to contact us? Send an e-mail addressed to "BurtLaw" at "The Daily Judge.Com" (we have deliberately not put the address in typical e-mail form, e.g., ABC@TheDailyClog.Com, because when one does so, the automated web-trollers used by spammers add such e-mail addresses to their lists). We trust you are smart enough to put "BurtLaw" together with "@" and "TheDailyJudge.Com," because you wouldn't be interested in this site if you weren't smart.
About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He 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's removal sought for seeking loans from lawyers. "[The New York State Commission on Judicial Conduct] has recommended that a State Supreme Court judge from Albany [Thomas J. Spargo] be removed for soliciting tens of thousands of dollars in contributions from lawyers to help pay legal bills. According to the panel, [Spargo] sought to stop the commission's investigation into a number of complaints by filing lawsuits in both federal and state courts. In the process, he incurred $140,000 in legal expenses and turned to lawyers with cases before him for donations...." More (N.Y. Times 04.01.2006). Comment. The panel also found that Justice Spargo committed misconduct as a town justice, one of the charges he incurred the legal bills fighting, by "distribut[ing] $5 coupons and free alcoholic drinks as a candidate for the post in 1999." The administrator of and counsel to the commission is quoted as saying that "'ironically, the misconduct'arising from Justice Spargo's efforts to halt the investigation 'was far more serious than the original complaints.'" Distributing $5 coupons and free alcoholic drinks seems pretty serious to me.

    Courthouse owls have been 'at it' again. "Like the blooming of downtown's flowers and the increased traffic on the bike trails along the river, this city has another new rite of spring: the return of the owls. For the second straight year, a mother great horned owl with two babies has nested in a mature tree on the James Street side of the Old Kane County Courthouse [in Geneva]...." More (Aurora Beacon News 04.01.2006). Comment. Another example of other animals being allowed to do, without fear of prosecution, certain things we humans perhaps technically aren't allowed to do -- in this case, having sex at the courthouse, as all the evidence suggests the owls in fact have been doing. See, our comments at The courthouse dog -- or, what are dogs up to? Do judges ever behave like owls? Not too many people know that Emily Dickinson carried on rather wantonly with a judge, name of Otis Lord, to whom she gave the nickname "The Owl." Read on at Emily Dickinson's own judge. Sometimes, it seems, the woman who presents herself as shy, modest, quiet, passive, and passionless is anything but....

    Goodbye to the Courthouse Diner. "Attorneys, court officers and area residents bade farewell Friday to the Courthouse Restaurant, a popular eatery of 23 years across from the courthouses in Kew Gardens. Mourners stood outside the restaurant to share memories and flowers were placed on the restaurant's closed doors, where an 'It's Over' sign hung. The diner was a long-time staple of courthouse lawyers, defendants, journalists, police officers, judges and even a few celebrities -- Evander Holyfield, Joey Buttafuco and Johnnie Cochran...." More (Flushing Times-Ledger 04.01.2006). Further reading on courthouse eating. Your tax dollars at work: $3.5 million courthouse cafeteria. Did hotdog stand create 'circus-like atmosphere in the courts'? - Chief judge grills burgers for construction crew - Vendor to sell hot dogs outside Iowa courthouse.

    Judge inks multi-year deal. "[Judge] Paula Abdul has agreed to continue her role as a fan-favourite judge on US broadcaster Fox's show American Idol for at least three more years...." More (Indian Television 04.01.2006).

    Updates on MN's he-said/she said controversy involving senator, justices. "Saying they doubted they could force state Supreme Court justices to testify, members of a Senate ethics panel Friday agreed to dismiss a complaint against Majority Leader Dean Johnson, averting an inquiry that would have pitted the credibility of the court against that of the senator...."Details (Minneapolis Star-Tribune 03.25.2006). On Monday Johnson apologized to his colleagues for making an "inaccurate" statement to ministers and reiterated he received no "commitments" from any supreme court judges on how the court would decide same-sex marriage case. But we also have learned that "Johnson's lawyer...Ellen Sampson said if the special subcommittee on ethical conduct pressed on, Johnson was prepared to call witnesses who would testify to discussions he had with justices. 'If the committee tells us to name them, we will name them and we will call the witnesses who were in those meetings and heard those conversations,' Sampson said during a closed portion of a hearing held by the panel...."More (Minneapolis Star-Tribune 03.28.2006). To the same effect, see, St. Paul Pioneer-Press (03.28.2006) ("[Johnson's apology for making an 'inaccurate' statement at the ministers' meeting] does not clear up who is telling the truth about conversations Johnson has claimed to have had with Supreme Court justices about the 1997 law. The senator maintains that he had some conversations about the subject, and last Friday his lawyer said several of those conversations had witnesses...."). Today we learn that two senators on the ethics panel are saying Johnson's claim he has witnesses is plausible: "GOP Sen. Tom Neuville of Northfield and DFL Sen. Wes Skoglund of Minneapolis said they couldn't dismiss the possibility that conversations [with justices] took place...'I think it is possible he had a meeting and the topic came up,' said Sen. Thomas Neuville, R-Northfield. 'If push had come to shove, I think (Johnson) would have had witnesses. I didn't sense he was gaming or bluffing.'" More (Grand Forks Herald 03.29.2006). "Two attorneys -- a Minnesota House member [Rep. Tom Emmer] and a crusader against state Supreme Court rules [Greg Wersal] -- filed separate ethics complaints Friday...with the Board on Judicial Standards and the Lawyers Board of Professional Responsibility, question[ing] whether [one or more] justices violated the [court's rules] by [allegedly] talking to Johnson about the 1997 state law that bans gay marriage...." More (St. Paul Pioneer-Press 04.01.2006). Senate committee rejects proposed constitutional amendment banning same-sex marriage (KARE-11 04.04.2006). Earlier. Here are links to our previous, more-detailed postings on this controversy, in reverse chronological order: Minnesota's he-said/she-said controversy: Is somebody necessarily lying? (03.22.2006). The chief tries again -- did he do any better? (03.21.2006 posting) - The latest on what, if anything, MN's Supremes told a senator (03.18.2006 posting) -  What, if anything, did one or two or three supreme court justices say? (03.17.2006 posting).

    $10 cigars, meals, drinks, gifts, cash - did judge take bribes? "[Gerald Garson, a former Brooklyn trial judge who was] accused three years ago of accepting $10 cigars, meals and drinks several times a week, as well as gifts and cash as bribes in divorce cases, will now face trial...Thursday the state's highest court[, overruling lower courts] said there is enough evidence [to proceed]."More (Buffalo News 03.31.2006).

    Court clerk, claiming libel, gets judge to shut down web site. Winnebago County Clerk of Courts Diane Fremgen claims an anonymous participant in a bulletin board at the website FullofBologna.Com defamed her by posting sexually explicit comments about her. She has filed suit seeking actual and punitive damages against the operator of the site and others. Acting at her request, Wisconsin Circuit Judge Robert Wirtz ordered the web site shut down. William Lueders, president of the Wisconsin Freedom of Information Council, is quoted as saying the judge's order is a very restrictive move: "Prior restraint is the most severe restriction you can place on free speech, and it's generally reserved for very rare situations which involve the possibility of irrevocable harm. It's a pretty high standard." More (Duluth News-Tribune 03.31.2006). Comments. a) One of the risks in filing a defamation suit is that one potentially calls attention to oneself, opening one's life to greater scrutiny. For example, a quick Google search reveals: i) Ms. Fremgen is apparently considered a "celebrity" in Oshkosh County because she is included on the library's list of books "celebrities" read; the list states: "Diane Fremgen - Clerk of Courts, Winnebago Co. - Currently Reading The Kiss Danielle Steel - Favorite Author Danielle Steel." ii) A report of a July 4, 2000 4th-of-July Parade contains the following: "In the 'give me a break' category was Clerk of Courts Diane Fremgen, who kept shouting 'Happy Birthday America' to anyone who would listen. Ah the benefits of not having an opponent in the Fall." iii) Another search result lists her as "President. Wisconsin Clerks of Circuit Court Association." I guess if that's all that's "out there," she has little to worry about by proceeding with the suit. b) One of the reasons we don't have a bulletin board allowing postings is we don't want to be responsible for monitoring and removing anonymous scandalous postings. We're not sure it's settled law that a webmaster has a legal duty to monitor bulletin board postings, but obviously he has an ethical duty to try run a fair show and perhaps ought to be legally obligated to remove anonymous postings if he receives fair notice of their defamatory nature. Since we don't have a bulletin board, we don't have the problem. Our policy on corrections? Even though this is an opinion blog dealing with public figures and matters of public interest and even though all of our opinions are based in part on fair use of news reports that we have no reason to discredit, our policy is clearly stated on every page: If you feel we have made a factual error or been unfair in expressing our opinion, please contact us (click here) and give us an opportunity to correct the perceived wrong. Moreover, we welcome not only complaints but other opinions and suggestions for improvement. Update. a) "The [Washington] Supreme Court ruled Thursday a trial judge overreached his authority when he restricted a man from posting information on a Web site. Paul Trummel was jailed for more than three months in 2002 in his free-speech standoff with the judge over the Web site he used as a forum for attacking the Council House, a federally subsidized retirement home where he once lived...Trummel currently faces six charges of violating the anti-harassment order, said his criminal attorney, Brad Meryhew. Meryhew said he did not know how the justices' ruling would affect those charges...." More (Seattle Post-Intelligencer 04.02.2006). b) Court allows web site to resume operations after owner agrees to ban two users from posting to bulletin board. Fremgen's lawyer says she won't seek damages from the owner if he cooperates, as he has agreed to do, with determining the identity of those who posted the allegedly defamatory comments about Fremgen. More (Duluth News-Tribune 04.04.2006).

    AG's opinion: Judicial Conference broke law by hiding meeting location. "A gathering of North Dakota judges violated the state's open meetings law because its specific location was kept quiet, Attorney General Wayne Stenehjem says. Stenehjem himself is a member of the North Dakota Judicial Conference, which includes the state's Supreme Court justices and clerk, district and local judges and the dean of the University of North Dakota's law school. A public notice of the conference's meeting last November said it was in Bismarck, but did not give the address because of what organizers described as security concerns...." A citizen requested the opinion. More (Grand Forks Herald 03.31.2006). Text of opinion.

    Yet another judicial apology to someone wrongly accused of rape. "A Judge this week apologised to a man wrongly accused of rape for the ordeal he has endured going through the courts. Andrew Harknett, 41, of Malkin Drive in Church Langley, had been accused of raping a woman whose mobile telephone rang her husband during the alleged attack in Hoddesdon. Mr Harknett, who has spent 14 months accused of a sex attack he did not commit, was told by St Alban's Crown Court Judge Seddon Cripps that he could leave court 'without a stain on your character.'" More (Herts24 03.31.2006).

    Former judge pleads guilty to meth charge. "A former Wind River Indian Reservation judge pleaded guilty to conspiracy to distribute methamphetamine and prescription drugs and to threatening a federal officer. Lynda Noah, formerly Lynda Munnell, will face a minimum of five years in federal prison when she's sentenced on June 10...." More (Casper Star-Tribune 03.31.2006).

    Play about a cantankerous old judge and a young woman. "And while Sarah is certainly no dunce, she does have her task cut out for her, working with the cantankerous old judge who’d rather correct her grammar than know anything else about her. And herein lies Holmes’s proof that the critics of Trying are wrong, that the play is as much about Sarah’s journey into adulthood as it is a resumé of the famous judge’s life...." From a review in Vue of Trying, a play written by Joanna McClelland Glass and directed by Dennis Garnhum, "based on [the playwright's] own experience as a young woman working with [Francis] Biddle during the last year of his life in 1968." Biddle, of course, is the "American lawyer and judge who served as one of the chief justices during the Nuremberg trials and as Attorney General under Franklin Roosevelt."

    Judge's midnight hearing at request of prominent doc under investigation. A Cincinnati judge, George Parker, who is already facing judicial misconduct allegations for previous matters, is now the subject of further scrutiny after he held an extraordinary midnight hearing at the request of defense counsel for a prominent doctor, Marianna Vardaka, the chief of gynecology services at Jewish Hospital, who was arrested for breaking into the home of her ex-lover and assaulting him. Prosecutor Robert Peeler, who was out of town, says Judge Parker called up an assistant and said "We're having a hearing in thirty minutes." The assistant, who couldn't make it, "was hooked into the hearing from home by speaker phone," according to a story in the 03.31.2006 Cincinnati Enquirer. Sheriff's deputies "expressed concern that Parker ordered them to the late Saturday hearing and forced them to file charges in a hurry[, saying that t]here would likely have been more charges if they had been allowed to finish their investigation...According to sheriff's records, Parker held the hearing at the request of Vardaka's attorney, Rob Lyons, a judge in Butler County Area I Court in Oxford...." Prosecutor Rachel Hutzel, who plans to seek an indictment against the arrestee, expressed concern that the arrestee, who reportedly seemed under the influence and struggled with deputies, was released on a recognizance bond. She also is quoted as saying that it was extraordinary to hold the late-night hearing: "You don't do things behind closed doors and after hours." See, also, Editorial: Judge Parker's brand of justice (Cincinnati Enquirer 03.31.2006). Comment. We're amazed on a nearly daily basis at the various ways in which judges get into trouble.

    Uproar over timing of chief's resignation, appointment of successor. "[New Jersey State Senator Andrew] McDonald said he found the timing of the dramatic developments 'extraordinarily odd.' 'This announcement landed like a Scud missile in the middle of our busiest time, without explanation and without context,' McDonald said. 'History teaches us that when something is launched into the legislative arena late in the process, it's usually because something else is going on and there's a hope that in the chaos of the waning days of the session, the lack of time will force a premature vote. 'Don't look at it too much' is basically what they're saying.'" What's he talking about? He's talking about the announcement by Governor M. Jodi Rell, "all in the same breath," of the sudden, unexpected resignation of the chief justice, William J. Sullivan, to take effect April 15, in the middle of the court's term, and of her appointment of Associate Justice Peter T. Zarella to take Sullivan's place. What's so troubling? In NJ the appointment must be legislatively confirmed, but the legislature is in "the hectic final weeks of a short session." According to a report in the Hartford Courant dated 03.30.2006, "[M]any court observers [are] speculating that Sullivan presented Rell with a package deal -- his resignation and the opportunity to appoint not only a Supreme Court justice to fill the vacancy, but a chance to name a chief justice as well, provided that nominee was Zarella." Legislators have asked Sullivan to postpone his resignation and Rell to postpone the nomination but both have refused. Rep. Michael Lawlor is quoted as saying, "I smell a rat, and we're going to figure out what it is...I do know one thing. Usually, when there is an attempt to sneak things through at the last minute, there's a reason for it. It's incumbent on us to find out what that reason is." Comment. I know nothing about the situation in NJ but I know that in the past rumors have circulated in the MN legal community of individual instances of a retiring chief justice or associate justice presenting the governor with an implied take-it-or-leave-it "package deal" specifying a replacement. I have no knowledge of the validity of those rumors and, indeed, they've always seemed far-fetched to me, but I still have a small-town boy's reluctance to believe anyone, judge or not, would trade political favors.

    Deputies investigate feces on door to judge's chambers. "The Grayson County Sheriff's Office released details of an investigation into criminal mischief [smearing of feces on county property] at the Grayson County Justice Center and at the Sherman office of 336th District Judge Lauri Blake...GCSO investigators also learned that a similar incident occurred at the Old Courthouse at the west door and inside the courthouse on the door of Judge Blake’s courtroom...." More (KTEN.Com 03.30.2006). Earlier. Next Bush pick -- how about a) woman b) from Texas c) who's outlawed sex?

    Legal groups oppose call for special rape court. "Specialized courts to deal with sex offences could overturn the presumption of innocence and result in unfair trials, legal groups have warned. The chairman of the NSW Bar Association's criminal law committee, Stephen Odgers, SC, said separate courts with dedicated judges could lead to the creation of an unfair presumption of the guilt of the accused...." More (Sydney Morning Herald 03.31.2006). Comment. In other words, they agree with BurtLaw. See, our comments at Annals of specialized courts - rape courts?

    Convicted judge weeps in court. "The former judge [Drew Stymiest, who stands] convicted of the most counts [of the four defendants] dissolved into tears as he addressed the 100 people who jammed into the courthouse's largest courtroom...." More (CBC New Brunswick 03.30.2006). Earlier entries. Judge resigns - Judge, three others, found guilty of fraud - Not just any judge. Update. Judge gets 5-year prison sentence (Calgary Sun 04.01.2006).

    Ex-judge pleads guilty to extortion. "Former Roane County General Sessions Court Judge Thomas Alva Austin served up his guilty plea to federal extortion charges Wednesday with a side of caveats...." More (Knoxville News-Sentinel 03.30.2006). Earlier. Judge charged in diversion program kickback scheme.

    Your kids' constitutional right - to dinner with you. Calvin Trillin, the long-time New Yorker writer, has a moving piece in the issue dated 03.27.2006 about his late wife; it's titled "Alice, Off the Page" and it includes this:

Concerning children's constitutional right to sit down to dinner with their parents every night, Alice tended toward strict constructionism...When it came to trying to decide which theories of child-rearing were highly beneficial...we agreed on a simple notion: you children are either the center of your life or they're not, and the rest is commentary.

Chief Justice Rehnquist, that famous strict constructionist, apparently felt the same way:

[Rehnquist's funeral] was about him the father, the grandfather and a friend and a mentor with very little about his jurisprudential legacy. This was one of the most powerful men in America for 30 years, and it was all games he played with his family and trips he took, the fact that he never missed dinner with his family. His daughter summed it up best. She said, "To say, as many people have, that his family came first is misleading because that implies that something came second."

Michael Young, former Rehnquist law clerk (Daily Utah Chronicle 09.16.2005). For 28+ years I served as a trusted aide and adviser to the Minnesota Supreme Court and during that time my ex-wife and I raised two kids. I can count on the fingers of one hand the times I missed family dinner; indeed, many times I prepared the dinner. My main mentor in things judicial, the late Justice C. Donald Peterson, followed the same creed and served as an example to me. He also told me once that "the First Amendment" applied to the kids (he had six of them) during family meals, with no topic and no opinion forbidden. I am always amazed at public figures, judges, lawyers, etc., who are so engrossed in their careers that they think everything else is secondary. Night after night they traipse around, attending dinners, important functions, etc., all -- it seems to me -- in the service of their own egos. I feel sorry for their kids but more sorry for them. Family experts these days are stressing the importance of family dinners but one shouldn't need utilitarian thinking to justify the ritual. Family dinners need no justification. If you don't want and need to be present at them, there's something seriously wrong with you and, in my opinion, you're not fit to be a judge.

    Want to be a judge in the UK? It still helps to have connections. "Judges can still be appointed on the basis of social connections or behaviour rather than purely on professional expertise, a watchdog said yesterday. Sir Colin Campbell, head of the independent Commission for Judicial Appointments, said that 'old habits and cultures' could undermine the open, transparent and accountable procedures being set up under a new appointments regime next week...." More (UK Times 03.29.2006).

    Judges who served on secret court urge scrutiny on wiretaps. "Five judges who served on the secret court that approves domestic spying warrants endorsed a proposal Tuesday that would require judicial review of the National Security Agency's warrantless surveillance program...." More (Chicago Tribune 03.29.2006).

    Judge says he was 'horrified' by what he did. "Saying he was 'horrified' by what he had done, Seminole County Judge John Sloop on Tuesday told a panel deciding whether he should be kicked off the bench that a mental disorder made him order the arrest of 11 people who had accidentally gone to the wrong courtroom. 'I will never be able to make amends,' he said on the first day of his trial...." More (Orlando Sentinel 03.29.2006). Earlier. Annals of judicial conduct proceedings - 'the ADD defense.'

    Annals of specialized courts - rape courts? "Specialist courts for rape cases should be set up to assist victims and reverse low rates of convictions for sexual assaults, the State Government has been told. A 25-member sexual assault taskforce has recommended that sex assault cases receive separate treatment within the justice system and that prosecutors be specially trained...." More (Sydney Morning Herald 03.29.2006). Comment. There is a trend toward creation of more specialized, narrowly-focused single-subject courts -- teen courts, drug courts, gun courts, mental health courts, community courts, domestic violence courts, tennis courts, etc. In courts, as in everything else, there are fads & fashions. As our regular readers know, I'm generally against specialization by trial or appellate judges. In most instances, the "cons" outweigh the "pros," in my opinion. What the system supposedly gains in consistency, efficiency, and other values associated with specialization, it loses in narrow-mindedness, rigidity, and other assembly-line values associated with "experts" and bureaucracies. For the ABA's views, see Concept Paper on Specialized Courts (ABA 06.25.1996). For multiple reasons, we strongly oppose the rape court proposal, which seems to be aimed at making courts part of some war on crime. Courts ought never be part of a war on crime. Any war on crime is something best left to the rabble-rousing press, to prosecutors, to police, etc.

    Ex top judge says judges don't always know what they're doing. "Hugh Laddie, the first London High Court judge to resign in 35 years, said he often ruled on tax or insolvency cases that he wasn't trained to hear because of the way the English legal system works. 'It is neither efficient nor fair on litigants to run a system in which judges are frequently deciding cases outside their area of expertise,' Laddie, a patent law specialist, said in an interview last week. 'No system could avoid that in all circumstances, but that should be the aim. I do not believe it is the aim in the current English system.' Laddie, 59, told law students at the University of London last month he'd have been better off using a 'roulette wheel' to decide some cases, according to the Law Gazette. He has since softened his stand. 'If I said it, it was too strong,' he said, adding that the weekly had misinterpreted him...." More (Bloomberg.Com 03.28.2006). Comment. This is worth reading. Earlier. Related entries include: Musing on judge who quit because he was bored - Judge resigns from high court.

    Annals of judicial secrecy - secret opinions? [The NYCLU] asked an appeals court on Monday to force a federal judge [U.S. District Judge Thomas McAvoyto unseal a ruling he made in a terrorism case regarding the government's warrantless wiretapping program...The NYCLU asked the appeals court to order the judge to release his opinion publicly with redactions only to the extent necessary to protect classified information. 'We do not have secret courts in this country,' said Chris Dunn, NYCLU associate legal director. 'It's not a surprise that the government wants this to be secret, but it's extraordinary for a court to go along.'" More (Newsday 03.28.2006). Earlier. 'Secret dockets' in courts in D.C. - Judges on secret spy court to get White House briefing - Federal judge resigns in protest from secret court Bush bypassed - An investigation of judicial secrecy.

    Judge who lost cool over cellphone ringing has immunity from suit. A year ago Niagara Falls City Judge Robert M. Restaino was presiding in domestic violence court when someone's cell phone or wrist-watch alarm went off. He allegedly retaliated by setting a higher bail amount for defendants who appeared before him because they didn't cooperate with him in identifying who was responsible. According to a news report, "About 20 people spent an hour or more in the Niagara County Jail in Lockport as a result, until Restaino changed his mind." A lawyer for five of the men filed a civil damages suit in federal court complaining, inter alia, that Restaino questioned only the defendants and not court officers or lawyers. However, Judge William M. Skretny yesterday dismissed the suit on the ground Restaino "[had] the power to punish a person for criminal contempt for the kind of disturbance [in question]" and therefore Restaino is immune from suit. The lawyer for the five said he will appeal the decision. More (Buffalo News 03.28.2006). Comment. The newspaper says it doesn't know whether the judge is under investigation by the judicial conduct folks. Without commenting directly on this specific case, because I don't know all the facts, I will say that, personally, I've never admired the hold-them-in-contempt "style of judging," if you can call it that. More often than not, in my opinion, a judge who holds someone in direct contempt for something like a spectator's cell phone going off risks creating an image of courts that leads ordinary people to legitimately view courts with contempt. Although not directed at this specific type of situation, I like what Prof. Steve Lubet of Northwestern University Law School said about a federal judge down in Galveston, Texas named Samuel Kent who received favorable publicity for obnoxious behavior toward attorneys appearing in his courtroom: "There is a name for that sort of behavior, and it isn't adjudication. It's bullying. It smacks of nothing so much as the biggest kid on the playground picking on the smaller kids who are too browbeaten to fight back." More (Jewish World Review 08.16.2001). I don't think "bully behavior" by anyone, including a judge, has any place in or out of court. Whereas Seinfeld's Soup Nazi (SeinfeldScripts.Com - Episode 115) may be able to get away with "bully behavior," as long as the soup-masochists keep coming back, a common law judge ought not be allowed to get away with it. Indeed, it's BurtLaw Rule-of-Thumb #139 for avoiding discipline: Avoid using the contempt power altogether. The rule is a corollary of another rule, one 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 plan to allow the use of torture in interrogating and summary justice in trying "enemy military detainees" in its "War on Terror."

    Does Constitution protect detainees? 'Give me a break,' says Scalia. "Supreme Court Justice Antonin Scalia reportedly told an overseas audience this month that the Constitution does not protect foreigners held at the U.S. military prison at Guantanamo Bay, Cuba...The court will hear arguments tomorrow on Salim Ahmed Hamdan's assertion that President Bush overstepped his constitutional authority in ordering a military trial for the former driver of al-Qaeda leader Osama bin Laden...." More (Washington Post 03.27.2006). Comment. We don't mean to suggest he made any "commitments" on how he'll vote.

    Did Scalia give critics an obscene 'Sicilian blessing'? "Minutes after receiving the Eucharist at a special Mass for lawyers and politicians at Cathedral of the Holy Cross, U.S. Supreme Court Justice Antonin Scalia had a special blessing of his own for those who question his impartiality when it comes to matters of church and state. 'You know what I say to those people?' Scalia, 70, replied, making an obscene gesture under his chin when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs. 'That’s Sicilian,' the Italian jurist said, interpreting for the Sopranos-challenged...." More (Boston Herald 03.27.2006). Comment. "[I]t was not too long ago that Rep. John Burton made an obscene Sicilian gesture to a Republican in the course of a debate." From a book review by Ross Baker in Washington Monthly, July-August 1990. Same gesture that Scalia used? I don't know. I guess I'm not "fluent" in obscene Sicilian gestures, so I'm not sure what the gesture was or what was "said" by the gesture. This excerpt from a piece by Elaine Sciolino in the NYT in 2001 suggests there may be many not-so-nice Sicilian gestures.

    Judges just wanna have fun. "Stoic stewards of the Constitution by day in D.C. Superior Court, they are by night Deaf Dog and the Indictments, a guitar-heavy group of seven music-loving judges, anchored by a lone civilian, a ponytailed shrink on drums. They aren't picky about where they play...." More (Seattle Times 03.27.2006).

    Judicial marksmanship. "A rifle practice tournament for judicial officers and law students is to be held on March 28 at the Gerena rifle complex. The competition is only for advocates, judges, prosecutors, detectives, notaries, law consultants and law students...A cocktail will be held at the end of the tournament...." More (Sofia Echo - Bulgaria 03.27.2006). Comments. We think it's especially important that judges and notaries occasionally get together socially, so that they may swap stories from the trenches, share concerns over a friendly cocktail, and fire off a round or two together.

    Buying into the 'High Court Club'? "With its relatively minimal docket, the Supreme Court wouldn't necessarily come to mind as a growth market. But it is becoming one. Clients are vying for top practitioners, law firms are courting appellate specialists and, more and more, firms are bulking up in the Supreme Court and appellate arena...." Emma Schwartz and Tony Mauro, Firms Buying Their Way Into the High Court Club (Legal Times via Law.Com via Biz.Yahoo 03.27.2006). Comment. And yet Justice Frankfurter and other justices have said that some of the best arguments at the Court have been made by one-timers, small-town practitioners with a big-time case. People with money sometimes delude themselves into thinking they can buy their way into Heaven.

    Just a judge? How about a lordship? "Human nature being what it is, people have always wanted baubles and prefixes, and human nature being what it is, these things have often been for sale...." Geoffrey Wheatcroft, So, You Want To Be a Lord...How to buy your way into the British aristocracy (Slate 03.22.2006). Comment. In America, you can't buy a lordship, but how about an ambassadorship? Hey, if you're a lawyer and you ain't got enough money or political clout to get yourself an ambassadorship, you might help elect a governor and get yourself appointed judge. It doesn't bother me greatly if a governor appoints a political pal to the bench, as long as his pal, once he's on the bench, doesn't hypocritically play the politics card, sanctimoniously lecturing others about the importance of keeping the judiciary out of politics and vice-versa.

    Pols, cops, judges beg for pardons for pals. "Powerful politicians, judges and police chiefs all have gone to bat for criminals looking to have their rap sheets wiped out, including rapists, arsonists, even a prison escapee, a Herald review found...." More (Boston Heralds 03.26.2006).

    Judge orders strip club to install video surveillance so cops can watch. "A judge ordered the owner of the GoGo Joint bar to install a video surveillance system so police can monitor activity inside the Shelter Rock Road strip club...." More (Danbury News-Times 03.26.2006). Comment. Will it be a channel on the "basic" cable-TV package?

    Common Cause wants feds to decide validity of pay raise for state judges. "A government watchdog group asked a federal judge yesterday to seize jurisdiction over lawsuits that challenge a now-repealed law that increased the pay of top state officials. Common Cause of Pennsylvania said the justices on the state Supreme Court, which is poised to consider several such suits, have conflicts of interest because the level of their own salaries hinges on the outcome...." More (Philadelphia Inquirer 03.25.2006). Earlier. See, PA Supreme Court, under fire, will hear judicial pay-raise lawsuits and embedded links.

    Judge arrested for accepting drugs. "[Florence County Magistrate Rena White] was arrested and charged with misconduct in office after authorities said she accepted drugs from a relative...." More (Myrtle Beach Sun News 03.25.2006).

    'Government' - a poem by Carl Sandburg.

The Government -- I heard about the Government and I went out to find it. I said I would look closely at it when I saw it.
Then I saw a policeman dragging a drunken man to the callaboose. It was the Government in action.
I saw a ward alderman slip into an office one morning and talk with a judge. Later in the day the judge dismissed a case against a pickpocket who was a live ward worker for the alderman. Again I saw this was the Government, doing things.
I saw militiamen level their rifles at a crowd of workingmen who were trying to get other workingmen to stay away from a shop where there was a strike on. Government in action.

Everywhere I saw that Government is a thing made of men, that Government has blood and bones, it is many mouths whispering into many ears, sending telegrams, aiming rifles, writing orders, saying "yes" and "no."

Government dies as the men who form it die and are laid away in their graves and the new Government that comes after is human, made of heartbeats of blood, ambitions, lusts, and money running through it all, money paid and money taken, and money covered up and spoken of with hushed voices.

A Government is just as secret and mysterious and sensitive as any human sinner carrying a load of germs, traditions and corpuscles handed down from fathers and mothers away back.

-- From Carl Sandburg, Chicago Poems (1916)

    Justice Holmes and his pals motor along 'a mile of wonder.' "[T]he double flowering cherry trees from Japan along the river a world sight. Three of us Judges hooked off after conference yesterday and motored along a mile of wonder. They were just in perfection." Justice Holmes to Sir Frederick Pollock, Holmes-Pollock Letters (1941) (Letter dated 04.25.1920). Note. According to the National Park Service's Bloom Watch, the "blooming period" this year will be 03.24 to 04.05, with the "peak bloom" occurring 03.26 to 03.28, i.e., this weekend. Further reading: National Cherry Blossom Festival 03.25.2006 - 04.09.2006.

    Loveliest of Trees. Here's a poem I learned in a course taught by the wonderful & beautiful then-twenty-something Elizabeth Breeland Rogers (the only female teacher I had in college and law school) during the 1961-1962 school year at S.M.U. It's by A. E. Housman (1859-1936), who, coincidentally, was a son of a country solicitor. The poem is from A Shropshire Lad, a small volume of poems published by Housman at his own expense in 1896 after several publishers passed on it. The volume eventually became a best seller.

Loveliest of trees, the cherry now
Is hung with bloom along the bough,
And stands about the woodland ride
Wearing white for Eastertide.

Now, of my threescore years and ten,
Twenty will not come again,
And take from seventy springs a score,
It only leaves me fifty more.

And since to look at things in bloom
Fifty springs are little room,
About the woodlands I will go
To see the cherry hung with snow.

    Judge dresses down dressed-down female lawyers. "[I]t is clear that some female solicitors have no idea of appropriate court dress. The worst offenders are usually well-built women who expose at least the upper halves of their breasts, and as they lean forward to make a point to a judge sitting at a high level they present a most unwelcome display of bare flesh. A judge does not want to embarrass a woman who simply does not know how to behave properly in court by making a remark, but it would be handy if the senior partners in law firms took precautions to see that members of their team were appropriately dressed for court appearances." -- Supreme Court Chief Judge in Equity Peter Young in a column titled 'Politeness' in the Australian Law Journal. More (Sydney Morning Herald 03.25.2006). Comment. In our path-breaking special edition, BurtLaw's Law and Swimsuits, we said, "As a Muslim woman ought to be properly covered when swimming in public, we like to think that many female judges will turn to the appropriately-black Sharia swimsuit, which is judicially tasteful and flowing, indeed respect-inducing, much like a judge's robe." In a similar vein, we of course believe that all female solicitors in Australia who wish to avoid offending Judge Young and his old-guy view of proper female behavior and proper courtroom attire ought to dress Sharia-style when appearing in court. For more of Judge Young's expostulations on courtroom etiquette, see, Annals of judicial stickling - herein of water bottles on the sacred bar table.

    Top 500 judges? LawDragon.Com has published a list purporting to be a list of the top 500 judges in America. Top vote-getter? Richard Posner. Comment. We haven't perused the list, which is in the (to us) irritating PDF format. Without specific reference to this list, we don't put much stock in such lists. We've read some of the so-called "top lawyer" lists (we needn't say which) and believe some of the lawyers on them are barely competent.

    Man divorcing spouse who's a judge has trouble getting lawyer. "A Dartmouth man who said he couldn’t find a lawyer for his divorce case because his wife is a judge, is now saying several attorneys have come forward. Barry Sutherland says he’s meeting today with two lawyers to see if they’ll represent him in his case involved Suzanne Hood, a Nova Scotia Supreme Court judge. Sutherland had said Wednesday he approached 32 law firms, and several lawyers bluntly told him they were reluctant to take on a case that involved a judge...." More (Chronicle-Herald 03.24.2006).

    Judicial independence -- is it always a Martha Stewart-like 'good thing'? "The judge presiding over the prosecution of an Afghan man facing the death penalty for converting from Islam to Christianity said Thursday that international pressure would not affect his rulings in the case. Ansarullah Mawlavi Zada, the head of the public security tribunal here in the Afghan capital, said he had received no international pressure to date, but vowed to resist it...." More (Bradenton Herald 03.24.2006).

    Judge takes leave after plagiarism complaint. "A federal magistrate[,] ...Jennifer Rimmer[,] took two months [leave] after online legal journal Justinian reported recently that last year, she lifted more than 2000 words from a decision by Melbourne magistrate John Walters in her judgment on a sexual harassment case. Chief Federal Magistrate John Pascoe announced yesterday that Ms Rimmer was going on leave but not resigning...News of the incident came as high profile former Federal Court judge Marcus Einfeld was embroiled in a similar affair...." More (The Australian 03.24.2006). Comment. We just posted an extensive entry on judicial plagiarism: Judicial election issue: Did justice lift quotes in applying for judgeship? While we're on the subject, here's a BurtLaw Tip: If you're a judge who relies heavily on drafts written by a law clerk, you need to know that you could easily get "burned" if you sign your name to a draft provided by a law clerk if the clerk "lifted" someone else's words without proper attribution. In saying that, we don't mean to imply that any law clerk was responsible for Judge Rimmer's troubles.

    Complaints against judges on the rise. "One out of every five complaints lodged against a judge [in Israel] last year turned out to be justified, the Judges' Ombudswoman, retired Supreme Court Justice Tova Strasberg-Cohen, announced in her second annual report released Tuesday. According to the report, 1,114 complaints were filed in 2005, including 222 which were found justified. The figures marked a five percent increase in the proportion of justified complaints compared to the previous year, she said...." More (Jerusalem Post 03.23.2006).

    When a courthouse gets attacked. "Since November, when Christopher Lee Millis drove his pickup through the front doors of the [Marion County, Oregon] courthouse and set multiple fires inside, [Probate Judge Jim] Murch and other courthouse denizens have become nomads. 'It's certainly felt a little strange,' Murch said. 'It's kind of like the old days when the title 'circuit judge' really meant traveling around the county circuit.' Instead of using 14 courtrooms under one roof, judges and other courthouse staff have been put up in makeshift offices and courtrooms spread out across more than a dozen public and private facilities throughout Salem...." More (Salem Statesman-Journal 03.23.2006). Extra. Anecdotes from mobile court workers (Salem Statesman-Journal 03.23.2006).

    Naked grandmothers save old courthouse from wrecking balls. In Randolph County Indiana there was a big to-do last summer over whether to destroy the old courthouse & build a new one or restore the old one. Lots of people didn't want to see the historic building go & some older women posed nude for a calendar being sold to raise money to fuel the protest (& also bring attention to the cause). Now comes word that the commissioners have rescinded their decision to tear down the old courthouse, and the naked old gals, whose "nudie" calendar raised over $20,000, are being given much of the credit. More (Indianapolis Star 03.23.2006). Earlier. Holding court in the old Wal-Mart store - new form of 'judge-shopping'? A courthouse no grannies would pose nude to save. More on grandmas' nude-calendar fundraiser for save-the-courthouse protest. Older women to pose nude in try to save courthouse. Earlier links here and here. Update. Naked grandmothers plan sequel (Muncie Star-Press 03.25.2006).

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

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

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

   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.

   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.

Favorite Websites
Coming soon